,77:1) 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


PUTERBAUGH'S 


CHANOEET 


PLEADING  AND  PRACTICE 


A  PRACTICAL    TREATISE   ON 


THE  FORMS  OF  CHANCERY  SUITS,  PLEADING  AND  PRACTICE^ 
NOW  IN  USE  IN  THE  STATE  OF  ILLINOIS,  AND 
WHEREVER  THE  SAME  SYSTEM 
'  PREVAILS. 


WITH  FORMS  OF  BILLS,    ANSWERS,    PLEAS,    DEMURRERS,    EXCEPTIONS, 
PETITIONS,   ORDERS,   DECREES,    ETC. 


PRACTICE  IN  THE  SUPREME  AND  APPELLATE  COURTS. 


SABIN   D.    PUTERBAUGH, 

LATS  ONE  OF  THE  JUDGES  OF  THE  CIRCUIT  COURT. 


SECOND  EDITION. 


PEORIA,   ILLINOIS. 

1880. 


Entered  according  to  Act  of  Congress,  in  the  year  1880,  by 

SABIN  D,  PUTERBAUGH 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Uni-.   rf. 


INTRODUCTION. 


The  object  of  the  present  work  is  to  present,  in  one  volume 
of  convenient  size,  a  practical  treatise  on  pleading  and  practice 
in  suits  in  cliancery,  and  proceedings  of  like  nature ;  and  to 
suggest  forms  for  pleading  and  other  papers  necessary  for 
preparation  by  the  practitioner. 

The  first  chapter  consists  of  a  very  brief  reference  to  the 
general  principles  of  equity  pleading ;  the  second  points  out 
the  mode  of  instituting  a  suit ;  the  third  treats  of  the 
general  requisites  of  an  original  bill,  and  of  the  several  con- 
stituent parts  thereof;  and  the  fourth  gives  the  forms  of  the 
various  parts  of  an  original  bill. 

The  fifth  chaj)ter  refers  to  the  mode  of  bringing  parties  into 
court,  and  includes  process  of  appearance,  summons,  service 
and  return  of  process,  notice  by  publication,  service  by  copy 
of  bill,  and  compulsory  process  to  compel  an  answer. 

Taking  bills  as  confessed,  defaults,  effect  of  defaults,  rights 
of  defendants  after  default,  setting  the  same  aside,  and  pro- 
ceedings to  vacate  a  decree  against  a  defendant  not  personally 
notified,  are  considered  in  the  sixth  chapter. 

Chapter  seven  treats  of  the  various  modes  of  defense,  and 
steps  to  be  taken  by  the  defendant  after  service  of  process ; 
the  different  sorts  of  defenses,  including  exceptions,  motions, 
demurrers,  pleas,  answers,  disclaimers,  etc.  The  eighth  con- 
siders exceptions  to  answers  for  insufficiency,  and  scandal  and 
impertinence.     The  ninth  refers  to  amendments  to  bills;  and 


INTRODUCTION. 


the  tenth  to  replications,  the  nature  and  effect  of,  and  when 
to  be  tiled. 

The  eleventh  refers  to  the  manner  of  obtaining  testimony^ 
production  of  books  and  writings,  taking  depositions,  taking 
proofs  before  the  master,  etc.,  to  be  used  on  the  hearing.  The 
twelfth  treats  of  feigned  issues,  forming  issues  of  fact  under 
the  statute  to  be  tried  by  a  jury,  etc.  The  thirteenth  refers 
to  the  course  of  proceeding  on  the  hearing;  and  the  four- 
teenth to  decrees  and  decretal  orders ;  the  nature,  uses  and 
different  kinds  thereof;  and  their  constituent  parts. 

The  work  thus  far  includes  the  method  of  instituting, 
conducting,  and  defending  an  original  suit  in  chancery,  from 
its  commencement  to  and  including  the  final  decree. 

Bills  not  original  in  their  nature,  including  supplemental 
bills,  bills  in  the  nature  of  supplemental  bills,  bills  ot 
revivor,  bills  in  the  nature  of  bills  of  revivor,  bills  of 
revivor  and  supplement,  and  bills  of  review,  are  consid- 
ered in  the  tit'teenth  to  twentieth  chaptei's  inclusive.  The 
twenty-first  treats  of  bills  of  discovery ;  the  twenty-second, 
bills  of  interpleader;  the  twenty-third,  bills  and  petitions  to 
perpetuate  testimony ;  and  the  twenty -fourth,  of  cross-bills. 
Then  follow  chapters  relating  to  proceedings  in  special  cases, 
such  as  bills  for  specific  perfoi-mance,  bills  relating  to  partner- 
ship matters,  bills  to  redeem,  bills  to  foreclose  mortgages, 
creditor's  bills,  partition  suits,  proceedings  for  dower,  bills  for 
divorce,  separate  maintenance,  bills  to  quiet  title,  bills  to  set 
aside  wills,  ne  exeat,  bills  to  restrain  waste,  bills  relating  to 
trusts,  proceedings  to  enforce  mechanic's  liens  and  injunctions. 

This  work  contains  252  practical  forms,  given  in  connection 
with  the  various  subjects  under  consideration.  These  embrace 
60  forms  of  bills,  15  of  answers,  17  of  demurrers,  17  of  pleas, 
12  of  petitions,  17  of  affidavits,  71  of  decrees  and  decretal 
orders;  the  balance  are  miscellaneous.     So  far  as  they  could 


INTEODUCTION. 


be  found  applicable  to  the  present  practice  and  times,  they 
have  been  drawn  from  the  best  and  most  authoritative 
sources.  Others  I  have  ventured  to  frame,  and  while  they 
may  not  be  regarded  with  entire  confidence,  I  trust  that 
they  are,  in  the  main,  safe,  and  will  be  taken  as  suggestions 
merely,  and  not  as  models. 

In  the  preparation  of  this  book  1  have  consulted  freely  the 
leading  works  on  equity  pleading  and  practice,  among  others 
Story's  Equity  Pleading,  Daniel's  Chancery  Practice,  Bar- 
bour's Chancery  Practice,  Cooper's  Equity  Pleading,  JVIitford's 
Equity  Pleading,  Welford's  Equity  Pleading,  Barton's  Suit  in 
Equity,  Hunter's  Suit  in  Equity,  Van  Heythusen's  Equity 
Draftsman,  and  Seaton's  Forms  and  Decrees,  and  all  the 
leading  reports  so  far  as  accessible,  and  particularly  those  of 
Illinois  so  far  as  published. 

1  have  no  doubt  that  many  errors  and  imperfections  will  be 
discovered  herein.  This  being  the  first  edition,  errors  are 
unavoidable.  I  shall  esteem  it  a  special  favor  if  my  pro- 
fessional brethren  will  point  out  to  me  such  errors  and 
omissions  as  they  may  discover,  to  the  end  that  they  may  be 
corrected  or  supplied  in  the  next  edition. 

In  submitting  the  present  work,  I  wish  to  return  my  grate- 
ful acknowledgments  for  the  favor  with  which  the  three 
editions  of  the  Common  Law  Pleading  and  Practice  have  been 
received  by  the  profession,  and  trust  that  this  treatise  will 
meet  with  and  deserve  as  favorable  a  reception. 

S.  D.  PUTEKBAUGH. 

Chicago  June  20, 1874. 


INTllODUCTION  TO  THE  SECOND  EDITION. 


Since  the  publication  of  tlie  first  edition,  the  statutes 
rehiting  to  several  subjects  embraced  in  this  work  have 
been  amended,  and,  to  include  the  latest  decisions  of  the 
courts,   a  revision  has  been  undertaken. 

References  are  made  in  this  edition  to  the  present  stat- 
utes, and  decisions  of  the  supreme  court  down  to  and  in- 
cluding the  90tli  volume  of  the  Illinois  Reports,  and  those 
of  the  appellate  court  to  the  4th  volume  of  Brad  well's 
Reports. 

The  subject  of  practice  in  the  supreme  and  appellate 
courts  has  been  added  to  this  edition,  covering  75  pages; 
including  the  subjects  of  the  jurisdiction  of  the  supreme 
court,  jurisdiction  of  the  appellate  court,  agreed  cases, 
writ  of  error,  supersedeas^  appeals,  records  of  inferior  courts, 
docket,  assignment  of  error  and  proceedings  thereon,  mo- 
tions, suggestions  of  diminution  of  record,  original  papers, 
abstract  of  the  record,  brief  and  argument,  advance-fee  to 
clerk,  cases  taken  from  appellate  to  the  supreme  court, 
judgments,  executions,  rehearing,  licensing  attorneys, 
striking  names  from  the  roll,  etc.  ;  all  the  rules  of  the 
supreme  court  to  date,  and  all  the  rules  of  the  several  dis- 
tricts of  the  appellate  court,  are  set  forth  in  order  in  con- 
nection with  the  subjects  considered. 

With  the  revision  and  additions  it  is  hoped  that  this 
edition  will  prove  acceptable  to  the  profession,  and  meet 
with  tlie  same  impartial  favor  as  that  given  to  my  Common 
Law  Pleading  and  Practice,  and  to  the  first  edition. 

S.   D.   PUTERBAUGH. 
Peoria,  Illinois,  January  1,  1880. 


ANALYSIS  OF  CONTENTS. 


CHAPTEK  I. 

GENERAL  PRINCIPLES  OF  EQUITY  PLEADING 39 

CHAPTER  II. 

COMMENCEMENT  OF  A  SUIT  IN  CHANCERY. 

Section  1.    Ho"w  commenced 35 

2.  Where  commenced 36 

3.  Security  for  costs 37 

When  required 37 

Forms  qf  bonds  for 3S 

CHAPTER  III. 

BILLS  IN  CHANCERY. 

Section  1.  Division  op  bills 3& 

2.  Constituent  parts  of  an  original  bill 40 

3.  The  address 41 

4  The  introduction 41 

5.  The  premises,  or  stating  part 43 

Certainty  required 43 

Exhibits 48 

The  bill  must  state  the  whole  subject 48 

And  not  too  many  subjects 48 

Matters  not  divisible ; 48 

Multifariousness 48 

Scandal  and  impertinence 51 

Scandal 51 

Impertinence 52 

6.  Confederating  part 52 

7.  Charging  part 53 

8.  Jurisdictional  clause 54 

9.  Interrogating  part 55 

10.    Prayer  for  relief 50 


ANALYSIS   OF  CONTENTS. 


11.  Pkayer  for  process 58 

12.  Frame  of  bill 59 

18.    Signing  of  bills 59 

14    Swearing  to  the  bill 60 

15.  Parties  to  bills 61 

Who  should  be  made  parties 63 

How  described 63 

Persons  under  disability 63 

Interest  of  parties 64 

Joinder  of  parties 64 

Want  of  proper  parties 65 

Misjoinder  of,  etc 65 

16.  Ancient  bills 66 

Form  of 66 

Observations  on 67 


CHAPTER  IV. 

FORMS  OF  THE  CONSTITUENT  PARTS  OF  AN  ORIGINAL  BILL. 

L    The  address 69 

II.    The  introduction 69 

III.  The  premises,  or  stating  part 70 

IV.  The  confederating  part 71 

V.    Charging  part 71 

VI.    Jurisdictional  part 73 

VII.    Interrogating  part 73 

VIII.    Prayer  for  relief 73 

IX.    Prater  foe  process 73 


CHAPTER  V. 

PROCESS  FOR  APPEARANCE. 

Beetion  1.    SrrMMONs 74 

2.    Service  and  return  of  summons 75 

How  served 75 

The  return 75 

8.    Notice  by  publication 77 

Time  of  publication 77 

Forms  of  affidavits  for  publication 78 

Continuance  for 79 

4.    Service  by  copy  of  bh.l 79 

Form  of  notice  to  be  served  with 80 

Form,  of  affidavit  of  service 80 

6.    Unknown  persons  as  defendants 81 


ANALYSIS   OF   CONTENTS. 


6.  Attachment 81 

How  obtaiuf'd 83 

Form  of  affidnvit  for 84 

Form  of  order  for 84 

7.  Attachment  with  proclamation 84 

8.  Commission  of  rekellion 85 

9.  Sergeant-at-arms * 85 

10.    Sec^uestration 86 


CHAPTER  YI. 


Section  1. 


TAKING  BILLS  AS  CONFESSED. 

Default 87 

When  it  may  be  taken 87 

Rule  to  answer 87 

Effect  of  default 88 

Rights  op  defendant  after  default 90 

Setting  aside  a  default 90 

Form  of  affidamt  m  support  of  motion  to 91 

Setting  aside  decree  when  defendant  is  not  person- 
ally notified 91 

Form  of  petition  for 93 


CHAPTER  VII. 


THE  DEFENSES  TO  A  SUIT. 


Section  1.    Proceedings  by  defendant  previous  to  putting  in  his 

answer 94 

Exceptions  to  bill  for  scandal  or  impertinence 95 

Form  of 95 

Motion  for  production  of  papers 96 

Motion  for  security  for  costs 96 

2.    The  different  sorts  of  defenses 97 

By  demurrer 97 

By  plea  97 

By  answer 97 

By  disclaimer 97 

By  demurrer,  plea,  answer  and  disclaimer 97 

A  cross  bill 98 

8.    Demurrer  to  a  bill 98 

Its  nature  and  uses 98 

Where  it  will  lie 102 

General  demurrer 104 

Special  demurrer 104 


10  ANALYSIS   OF   CONTENTS. 

Several  causes  of  demurrer 104 

Separate  demurrers 104 

Speaking  demurrer 105 

Demurrer,  ore  temis 105 

Demurrer  coupled  with  answer 106 

Demurrer  to  plea  or  answer  not  tolerated 107 

When  to  be  filed 107 

Hearing  of 107 

Effect  of  sustaining 107 

Effect  of  overruling 107 

Frame  of  a  general  demurrer 108 

Short  form  of 109 

Form  of  demurrer  to  bill  in  U.  8.  court 109 

Certificate  of  counsel  to 110 

Affidavit  to 110 

Form  of  demurrer  for  want  of  equity 110 

For  multifariousness Ill 

For  want  of  parties Ill 

For  want  of  privity Ill 

Fbrm  of  demurrer  to  bill  of  discovery,  etc Ill 

Defendant  has  no  interest 112 

Demurrer  to  part  of  the  bill 113 

And  answer  to  residue 112 

4.    Plea  to  a  bill 113 

Nature  of 113 

When  proper 114 

I.     To  the  jurisdiction  of  the  court 115 

II.     To  the  person 115 

IIL    Tothebill 116 

IV,    Pleas  in  bar 116 

Frame  of  plea 116 

Form,  of  pleas 119 

Commencement  and  conclusion  of 119 

To  a  part  of 119 

In  abatement 120 

Of  coverture 120 

Of  infancy 121 

Not  administrator 121 

Alien  enemy 121 

Want  of  prnj-j.r  2^nrti(:s 123 

Former  suit  pending 122 

Statute  of  limitations 123 

Of  release,  toith  answer 123 

Stated  account 124 

Plea  to  part,  and  answer  to  residue 125 

Signing  of  plea 126 

When  to  be  sworn  to 126 

When  to  be  filed 126 


ANALYSIS   OF   CONTENTS.  11 

Replication  to  plea 127 

Amended  to  bill  after  plea 127 

Demurrer  to  plea  not  proper 127 

Argument  of  plea 127 

Effect  of  allowing  plea 128 

Saving:  benefit  of  to  bearing 129 

Overruling  plea 130 

When  to  be  supported  by  answer 130 

5.    Answer  to  a  bell 132 

Nature  of 132 

Exceptions  to 136 

Fraud,  how  alleged 186 

Mode  of  answering 137 

Affirmative  not  allowed  on 138 

Frame  of 138 

Answer  may  be  joint 138 

Swearing  to  answer 140 

Waiver  of  oath 141 

Effect  of  sworn  answer 142 

When  evidence  against  co-defendant 142 

Admission  in  answer 142 

Answer  of  a  corporation 143 

Answer  of  infants,  etc 144 

Forms  op  answers 145 

The  titles 145 

The  Commencement 145 

Common  forms  in  framing 147 

Forms  of 148 

General 148 

Affidavit  to 149 

Short  form  of  answer 149 

Answer  of  infants  by  guardian  ad  litem 150 

Statement  claiming  benefit  of  statute  of  frauds. . .  150 
Conclusion  of,  insisting  that  complainant  has  ade- 
quate remedy  at  law 150 

When  to  be  filed 151 

Answer  to  amended  bill 151 

Amendment  to  answer 152 

8.    Disclaimer 153 

Nature  of 153 

Form  of 154 

Form  of  answer  and  disclaimer 155 


12 


ANALYSIS   OF  COJ^TENTS. 


CHAPTER  YIII. 


B^tioD  1. 
2. 


8. 


EXCEPTIONS  TO  ANSWER. 

Nature  op 157 

For  insufficiency 158 

In  what  cases  they  lie 158 

How  taken 158 

For  scANDAii  and  impertinence 160 

What  is 160 

When  to  be  filed 1G2 

Form  of,  for  insuf[iciency 162 

For  scandal  and  impertinence 162 

Form  of  order  to  expunge  scandal  and  impertinence  . . .  163 


CHAPTER  IX. 

AMENDMENTS  TO  BILLS. 

When  to  be  made 165 

When  not  allowed 167 

Form  of  petition  for  leave  to  amend 167 

Form  of  order  for  leave  to  amend 168 

FoT'm  of  amendment 169 

CHAPTER  X. 

REPLICATION. 

Nature  of 170 

Within  what  time  to  be  filed 170 

Issue  made 171 

Effect  of  filing 172 

Withdrawing 172 

Form  of 172 


CHAPTER  XI. 

TESTIMONY. 

Section  1.    Production  of  ijooks,  etc 174 

Documents  in  liands  of  third  persons 175 

Form  of  petition  for  production  and  inspection  of  papers  175 

Form  of  order  for 176 

2.    Depositions 176 

Of  resident  witnesses 176 


ANALYSIS   OF  CONTENTS.  .13 

Of  non-resident  witnesses 177 

Notice,  etc 178 

Of  non-resident  witnesses  upon  oral  interrogatories,  etc.  179 

Manner  of  taking,  etc 180 

8.    Evidence  taken  by  master  in  chancery 183 

Form  of  order  of  reference 183 

Form  of  manter's  report 184 

Form  of  ohjections  to 185 

Form  of  exceptions  to 185 

4.    Oral  testimony 186 

CIIAPTEE   XII. 

FEIGNED  ISSUES  — TRIALS  BY  JURIES. 

Nature  of 188 

Form  of  order  directing,  etc 190 

Drawing  up,  etc 191 

CHAPTER  XIII. 

HEARING. 

Course  of  proceeding 192 

Hearing  case  out  of  its  order 193 

Original  and  cross-bill  heard  together 193 

Effect  of  former  orders  on  the  hearing 194 

CHAPTER  XIY. 

DECREES  AND  DECRETAL  ORDERS. 

Section  1.    Nature,  uses  and  kind  op  decrees 195 

Interlocutory  decree 195 

Final  decrees 196 

8.    Forms  of  decrees 198 

Constituent  parts. 198 

Caption  and  title 198 

Form  of 198 

Recitals  of 198 

Forms  of  recitals 199 

The  ordering  part 199 

Declaratory  part 200 

Decree  by  consent 200 

Nunc  pro  tunc  clause 200 

Drawing  of  decrees 201 

General  form  of  order 202 

General  form  of  decree 202 

General  form  of  order  or  decree 202 


14  ANALYSIS   OF  CONTENTS. 


CHxVPTER   XV. 

SUPPLEMENTAL   BILLS. 

Section  1.  Nature  of,  and  when  proper 203 

2.  When  to  be  filed 205 

3.  Parties  to 205 

4.  Forms  op  bills 207 

Prayer  of 207 

Form  ofUll 208 

Form  of  hill 209 

5.  Petition  for  leave  to  file 210 

For7n  of 210 

6.  Process,  etc 211 

5       r  EFENSES  to 211 

Demurrer 211 

Form  of  demurrer 212 

Plea 212 

Practice  as  to  demurrers  and  pleas 213 

Form  of  plea 213 

Answer 213 

8.  Replication  and  evidence 214 

Replication 214 

Evidence 214 

9.  Hearing 215 

Entitling  orders  in 215 

DiBmissing  bills  of 216 

CHAPTER   XYI. 

BILLS  IN  THE  NATURE  OF  SUPPLEMENTAL  BILLS. 

Section  1.    Original  bills  in  the  nature  op  supplemental  bills.  217 

When  proper 217 

Form  of 219 

Proceedings  upon 222 

2.    Bills  to  carry  decrees  into  execution 222 

Nature  of 222 

Form  of. .   223 

CHAPTER    XYII. 

BILL  OF  REVIVOR. 

Section  1.    Nature  op  bill  of  revivor 225 

2.    When  proper 226 

13efore  decree 226 

After  decree 227 


ANALYSIS   OF  CONTENTS.  15 


8.    Against  whom  to  be  filed 228 

Before  decree 228 

After  decree 229 

4    Frame  of  bill 230 

Must  pursue  original  bill 230 

Forms  of  hill,  before  decree 280 

Form  of  hill,  after  decree 231 

6.    Defenses  to 233 

Demurrer 233 

Plea   233 

Answer 234 

6.  EjEPLICATION  235 

7.  Order  to  revive 236 

Form  of  order 236 

8.  Hearing 237 

9.  Effect  op  revivor 338 

CHAPTER  XYIII. 

BILLS  IN  THE  NATURE  OF  BILLS  OF  REVIVOR. 

Section  1.    Nature  and  uses 240 

2.  Parties  to 242 

3.  Frame  of  bill 242 

Formof. 243 

4    Defenses  to,  and  proceedings  upon 245 


CHAPTEE  XIX. 

BILLS  OP  REVIVOR  AND  SUPPLEMENT. 

Nature  of,  and  when  proper 246 

Practice  upon 247 

Form  of 247 

CHAPTER  XX. 

BILLS  OF  REVIEW. 

Section  1.    Nature  of,  and  when  proper 249 

Where  it  lies 249 

For  error  of  law 251 

Newly  discovered  evidence 252 

2.    Parties  to 254 

8.    Leave  to  file 255 

Performance  of  decree ....  256 

Petition  for 256 

Form  of  petition  for 257 


16  ANALYSIS   OF  CONTENTS. 

4.    Within  what  time  to  be  brought 258 

Form  of  order  for  leave  to  file 259 

6.      FOKM  OF  BILL 259 

For  error  of  law 260 

For  neicly  discovered  evidence 261 

Affidavit  to  Mil 202 

6.    Defenses  to 262 

Plea 262 

Demurrer 264 

Fm'm  of  plea  to 265 

Form  of  demui'rer  to 266 

CHAPTER   XXI. 

BILLS  OF  DISCOVERY. 

Section  1,    Nature  of,  and  when  proper 267 

3.  Frame  and  form  of, 269 

Form  of  hill 270 

8.    Defenses  to 272 

Demurrer 273 

Form  of  demurrers 274 

Plea  to 274 

Form  of  pleas  to 375 

Answer  to 376 

Practice  upon,  generally 377 

CHAPTER  XXII. 

BILLS  OF  INTERPLEADER. 

Section  1.    Nature  op,  and  when  proper 879 

Nature  of 379 

2.    Form  of  bill 283 

Affidavit  of  uon-colluaion 383 

Form  of  hill 284 

Form  of  affidavit  to 285 

8.    Defenses  to 286 

Dem  urrer 286 

Forms  of  demurrers 287 

Answer 287 

Injunction,  etc 288 

Form  of  order  for  injunction 289 

Taking  bills  for  confessed 289 

Evidence 290 

4.  Hearing  and  DECREE 290 

Costs 291 

Form  of  interlocutory  decree 393 


ANALYSIS   OF  CONTENTS. 


17 


CHAPTER  XXIII. 

BILLS  AND  PETITIONS  TO  PERPETUATE  TESTIMONY. 

Section  1.    Nature  op  the  proceeding 294 

2.  Frame  of  a  bill  to  terpetuatf,  'testimony 294 

Form  of  bill 297 

3.  Defenses  and  proceedings 298 

Demurrer 299 

Answer 299 

4.  Petition  to  perpetuate  testimony 300 

In  what  cases  proper 300 

The  petition 300 

Form  of  petition 301 

Affidavit  to 301 

Commission  to  take  depositions 302 

Docketing  petition 302 

Notice  to  parties 302 

Manner  of  taking  testimony 303 

Depositions  may  be  used 305 

CHAPTER  XXIY. 


Section  1. 
2. 


CEOSS-BILLS. 

Nature  of 305 

Frame  of  bill 307 

Forms  of  bills 308 

When  to  be  filed 312 

Leave  to  file 313 

Process  upon 313 

Defenses  to 314 

Demurrer 814 

Pleas 315 

Answer 315 

Proceedings  upon 316 


CHAPTER   XXY. 


Section  1. 


BILLS  FOR  SPECIFIC  PERFORMANCE. 

Nature  op,  and  when  proper 81T 

Lost  instrument 323' 

Of  an  award 324 

Parol  contracts 324 

Parties  to 325' 

Frame  op  bill 32ft 

Forms  of  bills 327 


18 


ANALYSIS   OF  CONTENTS. 


4.    Decrees 338 

Declaration  of  right,  etc 333 

Reference  of  title 334 

Payment  of  purchase  money 335 

Delivery  of  deeds 335 

Form  of  order  of  reference 385 

Form  of  interlocutory  decree  for  account 336 

Form  of  final  decree,  etc 336 

CHAPTER  XXYI. 

BILLS  RELATING  TO  PARTNERSHIP  MATTERS. 

Section  1.    Where  dissolution  will  be  decreed 338 

2.    Account  between  partners 340 

8.    Appointment  of  receiver 341 

When  appointed 342 

4.  Forms  op  bills 342 

5.  Forms  op  decrees  and  orders 347 


CHAPTER   XXVIl. 


Section  1. 

2. 
3. 
4. 


BILLS  TO  REDEEM. 

Nature  of 350 

Deed  absolute  ou  its  face,  etc 351 

Wno  may  redeem 852 

Within  what  time  to  be  piled 853 

Parties  to 354 

Complainants 354 

Defendants 356 

Tei{ms  of  redemption 857 

Frame  of  bill 359 

Forms  of  bills 360 

Decrees 367 

Form  of  decree  for  redemption 368 


CHAPTER  XXYIII. 


BILLS  TO  FORECLOSE  MORTGAGES. 

Section  1.    General  nature  op 870 

2.    Wuicn  proper 371 

8.    Parties  to 372 

Complainants 372 

Defendants  ....   373 

4.    Frame  of  bill 375 

Forms  of  Jnlln 376 


ANALYSIS   OF  CONTENTS. 


19 


Trust  deeds  and  sale  mortgages 382 

Form  of  hill  to  foreclose  trust  deed 383 

Strict  foreclosure 384 

Parties  to 385 

Form  of  hill  for  strict  foreclosure 386 

Defenses  to 388 

Decree  of  foreclosuke 389 

Forms  of  decree  of  sale 391 

Form  of  decree  of  strict  foreclosure 394 


CHAPTER   XXIX. 


Section  1 


CREDITOR'S  BILL. 

When  creditor's  bill  may  be  filed 396 

When  proper 397 

Justice's  j  udgment 398 

In  U.  S.  courts 398 

What  may  be  reached  by 398 

Parties  to  the  bill 400 

Complainants 400 

Defendants 401 

Priority  of  liens  of  bills 403 

Frame  of  bill 40 1 

Prayer 405 

Swearing  to 405 

Forms  of  hills 406 

Form  of  hill  in  aid  of  execution 413 

Foi'm  of  hill  against  executrix 416 

Form  of  order  apj)ointing  receiver 419 

Form  of  order  of  reference 420 

Form  affinal  decree 420 

Form  of  decree  setting  aside  fraudulent  conveyance  ....  432 


CHAPTER   XXX. 


PARTITION  SUITS. 

Section  1.    Nature  op,  and  how  instituted 428 

S.    Parties  to 426 

Complainants  or  petitioners 426 

Defendants 427 

Unknown  defendants 428 

Purchaser  pendente  lite 428 

8.    Bill  or  petition 428 

Form  of  petition 428 

Forms  of  hills 429 


20  ANALYSIS   OF  CONTENTS. 

Forms  of  hills  for  partition  and  dower 433 

Form  of  2'>etition  for  partition 435 

4.  Process  of  appearance  in    436 

How  summoned 436 

Absent  defendants 436 

Service  by  copy  of  petition,  etc 436 

5.  Interpleader 437 

Liens  on  shares  of  part  owners 437 

6.  Decree  for  partition 437 

»  Hearing 437 

Appointment  of  commissioners 438 

Allotment  of  dower,  etc 438 

Forms  of  decrees  for  partition 439 

Form  of  decree  for  partition  and  dower 441 

7.  Proceedings  by  commissioners 443 

Required  to  take  an  oath 443 

Form  of  oath 444 

Duty  of  commissioners 444 

Report  of  commissioners , 445 

Forms  of  reports  of  commissioners 445 

Form  of  decree  confirminr/  report 447 

8.  Exceptions  to  report  op  commissioners 448 

9.  Decree  op  sale 448 

Dower  interest 449 

Interest  of  unknown  owners 4-19 

Form  of  decree  for  sale 450 

10.  Exceptions  to  report  op  sale    .  451 

11.  Confirmation  op  sale 451 

Form  of  decree  confirming  sale 452 


CHAPTEE   XXXI. 

PROCEEDINGS  FOR  DOWER. 

Section  1.    Nature  op  dower 453 

2.  In  what  dower  attaches 457 

Aliens  entitled  to 459 

In  lands  mortgaged  before  marriage 459 

In  lands  mortgaged  to  secure  purchase  money 459 

Dower  in  surplus  after  sale  on  mortgage 459 

Not  in  estate  created  by  mortgage 460 

3.  Dower,  uow  barred 460 

By  jointure,  etc ....  460 

By  will,  etc 461 

Renunciation  of  will 463 

Effect  of  divorce,  etc 463 

By  abandonment  and  adultery 464 

Not  by  judgment,  etc 464 


ANALYSIS   OF  CONTENTS.  21 

When  by  exchange  of  land 464 

Persons  selling  by  order  of  court 4G5 

4.  Elements  and  incidents  of  dowku 465 

Transfer  of  dower 465 

5.  Suits  for  dower 4G6 

Duty  of  heirs  to  assign 466 

Who  may  file  petition 467 

Where  to  be  commenced 467 

Where  infants  are  petitioners  or  defendants 467 

Guardian  ad  litem 467 

8.    Frame  op  petition 467 

Parties  to 467 

Unknown  defendants 468 

Answer  of  defendants 468 

Form  of  petition  for,  hy  widow 468 

Affidavit  to 469 

Form  of  petition  by  hushand 469 

Form  of  petition  hy  heirs 470 

7.  Process  of  appearance 471 

How  summoned 471 

Unknown  parties 471 

Non-resident  defendants 471 

Service  by  copy  of  petition 473 

Setting  aside  decree,  when  defendant    not   personally 

notified 472 

8.  Interpleader 472 

9.  Hearing  and  decree 472 

Form  of  decree 473 

10.  Commissioners  to  assign  dower 474 

Appointment  of 474 

Form  of  oath  of 474 

Duty  of  commissioners 474 

Dower  may  be  assigned  in  a  body 475 

Homestead,  etc 475 

Report  of 475 

Subject  to  direction  of  court 475 

11.  Allowance  in  lieu  of  dower 476 

12.  Damages  for  refusal  to  assign  dower 477 

13.  Mode  of  ascertaining  value  of  dower,  etc 478 

Dr.  Wigglesworth's  table 479 

Table  showing  present  value  of  annuity  at  5  per  cent.   479 

Portsmouth  or  Northampton  tables 480 

Rule  for  computing  value  of  life  estate,  or  annuity. . . .  481 

14.  Miscellaneous  provisions  of  the  statute 481 

Dower   assigned    by  county  court   in  applications  for 

leave  to  sell  lands  to  pay  debts 481 

Waste  by  persons  to  whom  'dower  is  assigned 482 


ANALYSIS   OF  CONTENTS. 


CHAPTER  XXXII. 

BILLS  FOR  DIVORCE. 

Section  1.    Nature  of 483 

2.  Causes  for  divorce 485 

3.  jurisdiotion  of 485 

Where  commenced 485 

Residence  of  complainant 48(> 

Effect  of  divorce 486 

4.  Natural  impotency 486 

Form  of  bill  for ' 489 

5.  Former  marriage 490 

Form  of  bill  for 490 

6.  Adultery 491 

Circumstantial  evidence 492 

Frame  of  bill  for 493 

Form  of  bill  for,  by  husband 493 

Form  of  bill  for,  by  loife,  praying  alimony,  etc 494 

7.  Willful  desertion 496 

Form  of  bill  for 497 

8.  Habitual  drunkenness 498 

Form  of  bill  for,  praying  for  alimony,  custody  of  chil- 
dren   499 

9.  Attempting  the  life  of  the  otuer 501 

Form  of  bill  for 501 

10.    Extreme  and  repeated  cruelty 502 

Form  of  hill  for,  by  husband 503 

Form,  of  bill  for,  by  icife,  'praying  for  injunction 504 

il.    Conviction  of  crime 506 

Form  of  bill  for 507 

12.    Defenses  to 508 

Condonation 508 

Recrimination 510 

13     Injunction  in 510 

When  proper 511 

Custody  of  children  pendente  lite 511 

14.    Hearing  and  decree > 512 

Trial  by  j  ury 512 

Forming?  an  issue 512 

Form  of  order  directing  an  issue  of  fact 512 

In  case  of  default 513 

Confessions  by  defendant 513 

Collusion 514 

Proof  of  foreign  marriage 514 

Changing  wife's  name 514 

Form  of  decree  for  adultery,  etc 514 


ANALYSIS   OF  CONTENTS.  23 

Form  of  decree  for  adultery,  and  custody  of  cJiildren . . .  515 

Form  of  decree,  extreme  and  repeated  cruelty 516 

15.    Alimony  and  expenses  pendente  lite 516 

Leave  to  prosecute  as  poor  person 518 

Form  of  petition  for  alimony  pendente  lite 518 

Amount,  of  allowance 519 

Order  of  reference  as  to  alimony 519 

Form  of  report  of  m,aster  as  to  alloioance  of  alimony,  etc.  520 

Form  of  order  confirming  master's  report 521 

Form  of  order  for  alimony,  etc 521 

Permanent  alimony 521 

Sale  of  land  to  satisfy 522 

Form  of  decree  for  permanent  nlirnony 523 


CHAPTER   XXXIII. 

SEPARATE   MAINTENANCE. 

Section  1.    When  granted 525 

Grounds  for 525 

2.    Proceedings  to  obtain 527 

Where  commenced 527 

The  bill 527 

Injunction 527 

Form  of  hill  for 527 

8.    Defenses  to 529 

4.    Practice  in,  and  decrees 529 

Reference  to  master 529 

Form  of  order  of  reference 5-50 

Form  of  report  of  master   530 

Amount  of  allowance 531 

Modification  of  allowance 533 

Form  of  decree  for  separate  VMintenance 533 


CHAPTER   XXXIV. 

BILLS  TO  QUIET  TITLE. 

Section  1.    When  proper,  and  nature  of 537 

2.    Forms  op  bills 540 

To  quiet  title  and  cancel  deed 5^0 

To  set  aside  tax  deed    541 

To  set  aside  contract 544 

8.    Form  of  decree 546 

Form  of  decree  to  quiet  title,  and  to  cancel  deed 546 


24 


ANALYSIS   OF  CONTENTS. 


CHAPTER   XXXV. 

BILLS  TO  SET  ASIDE  WILLS. 

Section  1.  Nature  of,  and  -when  proper 547 

2.  What  necessary  to  constitute  a  valid  will 548 

3.  Fraud  in  procuring  execution  op  a  will 549 

4.  Want  of  capacity  to  make  a  will 550 

5.  Form  of  bill 551 

By  heirs  at  law,  to  set  aside  a  will 551 

6.  Issue  of  pacts  to  be  tried  by  a  jury 553 

Form  of  order  directing 553 

7.  Decree  setting  aside  a  will 553 

Form  of 553 


CHAPTER   XXXYI. 

NE  EXEAT. 

Section  1.    Nature  op,  and  when  proper 555 

2.    Bill  for 558 

Form  of 558 

8.    How  obtained 559 

Bill  for 559 

Bonds  to  be  given 559 

Order  directing  writ  to  issue 560 

Form  of,  by  judge 5G0 

Form  of,  by  master 561 

4.    Proceedings  upon 561 

The  writ  —  defendant's  bond 561 

Surety  may  surrender  principal 561 

Proceedings  in  court 562 

Quashing  writ 562, 


Section  1. 
2. 


CHAPTER   XXXYII. 

BILLS  TO  RESTRAIN  WASTE. 

Nature  op,  and  when  proper  563 

Form  of  bill.  .  566 

Landlord  v.  tenant,  etc 506 


ANALYSIS   OF  CONTENTS.  25 


CHAPTER   XXXVIII. 

BILLS  RELATING  TO  TRUSTS. 

'Section  1.    Nature  of,  etc 569 

3.    Form  of  bill 571 

To  remove  trustee 571 

7'(9  appoint  new  trustee,  etc 573 


CHAPTER  XXXIX. 

PROCEEDINGS  TO  ENFORCE  MECHANIC'S  LIENS. 

;Section  1.    Nature  op 575 

2,    Where  a  lien  is  given 576 

Suits  by  administrators,  etc 577 

Estate  to  which  lieu  attaches 577 

Extent  of  lien 577 

8.    The  contract  upon  which  it  is  founded 579 

Within  what  time  to  be  completed 579 

Implied  contracts 579 

Owner  failing  to  comply 580 

Materials  furnished  contractor 580 

4. .  Discharge  op  lien 580 

5.  Limitation  of  lien 581 

As  against  owner ,    581 

As  against  creditor,  etc 581 

6.  Incumbrances  and  other  liens 582 

Prior  incumbrances 582 

Rule  for  adjusting  conflicting  claims 582 

Conflicting  liens * 583 

Where  claims  are  not  due 584 

Parties  may  contest  each  other's  claims 584 

Fraudulent  incumbrances 584 

Delay  in  one  case,  not  to  eSect  trial  of  others 584 

7.  Sub-contractor's  lien 585 

Notice  to  be  giv^en  to  owner 586 

Copy  of  contract  to  be  served 586 

Notice  filed  with  circuit  clerk 586 

Extent  of  lieu 586 

Owner  may  retain  money  due  to  pay 587 

Statement  to  be  furnished  owner 587 

When  lieu  may  be  enforced 587 

Owner  may  tile  bill,  etc 5SS 

Proviug  claims,  etc 588 

Contractor  may  give  bond 589 


26  ANALYSIS   OF  COXTENTS. 

Where  contractor  fails  to  complete  contract 58& 

Limitation  of 590 

8.  Bills  and  Petitions 590 

Parties  to 591 

Form  of  bill,  on  written  contract ....  592 

Form  of  petition,  on  verbal  contract 594 

Form  of  petition,  on  implied  contract 596 

9.  Proceedings  upon 598 

Summons   598 

Notice  by  publication 598 

Cases  to  be  placed  on  chancery  docket 598 

10.  Amendments 599 

11.  Answers 599 

Form  of  answer  by  owner 600 

Form  of,  setting  up  discharge  of  lien 603 

Form  of,  setting  up  another  lien 602 

13.    Cross-bill 604 

Form  of,  setting  up  lien 604 

13  Decrees  and  sales 606 

When  part  of  premises  can  be  sold 606 

Sales,  how  made 606 

Eedemption  allowed 606 

Execution  for  balance 607 

Form  of  decree,  etc 607 

Form  of  decree,  reserving  adjustment 608 

Form  of  decree,  adjusting  liens,  etc . .  608- 

14  Costs 611 


CHAPTER  XL. 

INJUNCTIONS, 

Eevised  Statutes  of  1874,  of  Illinois,  relating  to 613 

Judges  authorized  to  grant 613 

Master  may  grant,  when 612 

Notice  of  application  for 612 

To  stay  judgments,  where  had 612 

Shall  operate  as  a  release  of  errors 613 

Judgments  before  J.  P 613 

As  to  part  of  judgment 613 

Bond  required 613 

Approval  of  bond  613 

Bond  to  be  filed  before  writ  issues 614 

Suggestion  of  damages  on  dissolution 614 

Contempt  in  violating 614 

Motion  to  dissolve  in  vacation 614 

Motion  to  dissolve  for  want  of  equity 615 

Motion  to  be  determined  on  testimony 615 


ANALYSIS   OF  CONTENTS.  27 

Affidavits  may  be  read 615 

Continuance  of  motion  to  dissolve 615 

Depositions  on  hearing  of  motion 615 

Depositions  on  final  hearing 616 

Eti'ect  of  appeal  on  injunction G16 

Further  bond  to  be  given 616 

Granted  on  Sunday 616 

Form  of  suggestion  of  damages 617 


CHAPTEK  XLI. 

MISCELLANEOUS   FORMS. 

Order  where  defendant  appears,  etc.,  and  admits  his  con- 
tempt, that  he  put  in  his  answer 618 

Order  committing  defendant  for  disobeying  order  to  put  in 

answer,  etc 618 

Order  in  case  of   contempt,  for  not  answering,  where  de- 
fendant denies  his  contempt,  directing  interrogatories.  . .   619' 
Order  convicting  defendant  of  contempt  after  examination 

on  interrogatories 620 

Order    to   refer    second    or   third    answer   on    old    excep- 
tions, etc 621 

Order  for  sheriff  acting  as  sergeant-at-arms 621 

Order  for  sequestration 622 

Order  of   reference  where   defendant   does   not  submit  to 

answer  exceptions 622^ 

Order  for  further  answer  after  report  of  master 62S 

Order  for  attachment  on   third  answer  being   held  insuf- 
ficient    623- 

Order  for  examination  of  defendant  on  interrogatories,  on 

third  answer  being  held  insufficient 623 

Order  for  leave  to   amend   bill   after  a   plea  to   part  has 

been  allowed 624 

Order  of  reference  to  master,  etc 624 

Order  of  reference  of  plea  of  former  suit  pending 625 

Order  directing  plea  to  stand  for  an  answer 625 

Order  allowing  complainant  to  dismiss  his  bill 625 

Order  to  pay  money  into  court 625 

Final  decree  dismissing  bill  at  hearing 626 

Order  for  cause  to  stand  over  to  add  new  parties 626 

Order  for  cause  to  stand  over  to  supply  proof 626 

Interrogatories  for  examination  of  party  in  contempt 627 

Answer  to  interrogatories  for  examination  of  a  party  in 

contempt 627 

Report  of  master  upon  exceptions  to  answer 628 

Further  answer  after  exceptions  and  amendment 628 


28  ANALYSIS  OF  CONTENTS. 

Report  of  master  as  to  sufficiency  of  defendant's  examina- 
tion    629 

Exceptions  to  master's  report  on  exceptions  to  answer 629 

Agreement  to  submit  the  cause  on  written  arguments. ....  630 

Abstract  of  pleadings  and  evidence  630 

Brief  and  points  to  be  used  on  the  hearing  .  .• 631 


CHAPTEK  XLII. 

PRACTICE  IN  THE  SUPREME  AND  APPELLATE  COURTS. 

Section  1.    Jurisdiction  of  the  supreme  court 683 

Original  jurisdiction 634 

In  revenue  cases 634 

Mandamus 636 

Habeas  corpus 637 

Appellate  jurisdiction 637 

From  appellate  court 639 

■  From  circuit  court,  etc 641 

2.  Jurisdiction  op  appellate  courts 641 

Appellate  jurisdiction  only 643 

Power  of  court 642 

Practice  and  pleading 642 

May  enter  judgments  in  vacation 643 

To  what  district 643 

Opinions 643 

Appeals  to  —  bond 643 

3.  Agreed  cases 645 

As  to  questions  of  law 646 

4.  Writ  of  error  —  supersedeas 647 

Limitation 647 

To  whom  directed 648 

Process  on  writs  of  error 648 

Form  of  prcecipe  for 649 

For  scire-facias,  etc 650 

Return  day 650 

Notice  to  non-residents,  etc 651 

To  purchasers  and  terre-tenants 652 

Supersedeas  652 

When  granted  —  application  for 653 

Effect  of 655 

Security  for  costs 655 

5.  Appeals 656 

When  record  to  be  filed 656 

Dismissal  of —  damages 657 

Not  for  want  of  sufficient  bond 658 

Effect  of  appeal 658 


ANALYSIS  OF  CONTENTS.  29 

6.  Records  of  inferior  courts 659 

How  prepared 659 

Placita  or  convening  order 6G0 

What  is  not  part  of  record 660 

Prcecipe  for 661 

Forms  of 662 

Amendment  of  transcript 663 

Additional  record 663 

Amendments  of 664 

Removing  from  clerk's  office 664 

7.  Docket    665 

Docketing  and  hearing 665 

Advancing  causes  on 665 

Redocketing  cases  not  decided . .  666 

Call  of 666 

Time  for  filing  abstracts  and  briefs 666 

Effect  of  failure,  etc 669 

Rehearing  docket. 670 

8.  Assignment  op  errors,  and  proceedings  thereon  . . .  670 

Additional  errors  may  be  assigned 673 

Form  of  assignment  of  errors 673 

Cross-errors 673 

Joinder  in  error 673 

Form  of 674 

Release  of  errors 674 

Time  of  filing ' 676 

Form  of  plea 676 

Trial  of  issues 677 

9.  Motions 677 

When  to  be  made 677 

In  what  order 678 

Special  motions 678 

Affidavits  in  support  of 678 

To  vacate  orders 679 

10.  Suggestion  of  diminution  op  record 679 

When  to  be  suggested 679 

Costs  on  certiorari 680 

Form  of 680 

11.  Original  PAPERS 681 

When  they  will  be  compelled  to  be  produced 681 

13.     Abstracts  op  the  record 681 

Time  for  filing 684 

Costs  of 684 

13.  Brief  and  argument 684 

Number  of  copies 685 

Oral  argument    686 

Time  allowed  for 688 

14.  Advance-fees  to  clerk    689  - 


30  ANALYSIS  OF  CONTENTS. 

15.  Cases  taken  from  appellate  to  the  supreme  court  690 

Manner  of  making  up  records,  etc 691 

Appeals  prayed  in  vacation 694 

16.  Judgments 694 

Remittitur .  695 

Reversal  —  remanding 696 

Special  directions 696 

Effect  of 696 

17.  Executions 696 

18.  Rehearing  697 

Application  for,  etc 697 

Order  staying  proceedings 699 

Answer  to  petition 701 

19.  Licensing  attorneys  —  striking  names  from  roll...  701 

Examination 701 

In  appellate  court 702 

From  other  states 703 

By  whom  issued,  etc 704 

Oath  to  be  taken 704 

Roll  of  attorneys 704 

Striking  names  from  roll,  etc 704 

For  refusing  to  pay  over  money,  etc 705 

Notice  of  complaint 706 

Information , 706 

20.  Library 707 


32  ANALYSIS   OF  CONTENTS. 

Report  of  master  as  to  sufficiency  of  defendant's  examina- 
tion    629 

Exceptions  to  master's  report  on  exceptions  to  answer 629 

Agreement  to  submit  the  cause  on  written  arguments 630 

Abstract  of  pleadings  and  evidence 630 

Brief  and  points  to  1  e  used  on  the  ]iearin<;- 631 


RULES  OF    PRACTICE    FOR    THE     COURTS     OF 
EQUITY    OF    THE    UNITED    STATES. 

Section  1.    Preliminary  regulations 633 

3.    Process 635 

3.  Service  op  process 636 

4.  Appearance 637 

5.  Bills  taken  pro  confesso 637 

6.  Frame  op  bill 638 

7.  Scandal  and  impertinence  in  bills 639 

8.  Amendments  op  bills 640 

9.  Demurrers  and  pleas 641 

10.  Answers 642 

11.  Parties  to  bills 644 

12.  Nominal  parties  to  bills 646 

13.  Bills  op  revivor  and  supplemental  bills 646 

14.  Answers 647 

15.  Amendments  op  answers 647 

16.  Exceptions  to  answers 648 

17.  Replication  and  issue 649 

18.  Testimony  —  how  taken 649 

19.  Testimony  de  bene  esse 653 

20.  Form  op  last  interrogatory 652 

21.  Cross-bill 653 

22.  Reference  to,  and  proceedings  before,  masters 653 

23.  Exceptions  to  report  op  master 655 

24.  Decrees 65b 

25.  Guardians  and  prochein  amis 656 


PUTERBAUGH'S 

OHAKOEEY 

Pleading  and  Practice. 


CHAPTER  1. 

GENERAL    PKINCIPLES    OF    EQUITY    PLEADING. 

As  lias  been  said  in  regard  to  pleading  at  law,  the  important 
object  to  be  attained  in  equity  pleading  is  to  bring  the  subject 
matter  of  contention  in  a  suit  to  an  issue  —  to  a  point  where  a 
matter  is  affirmed  on  one  side  and  denied  on  the  other  —  to 
render  the  facts  in  each  party's  case  plain  and  intelligible  ard 
to  refer  the  points  at  issue  to  the  court,  with  all  possible  sim- 
plicity, for  its  decision.  It  is  the  statement,  in  legal  form,  of 
the  facts  which  go  to  make  up  the  charge  and  defense  of  par- 
ties in  litigation ;  and  its  substantial  rules  are  founded  in  the 
soundest  and  closest  logic.  Precision  and  brevity,  certainty 
and  simplicity,  are  to  be  kept  constantly  in  view  in  framing 
pleadings.  All  superfluous  verbiage  and  useless  repetitions 
should  be  carefully  avoided.  The  mode  of  statement  must  be 
such  as  to  make  the  pleadings  intelligible  to  the  parties  and 
the  court,  without  recurring  to  possible  facts  which  do  not 
appear,  and  with  such  a  degree  of  certainty  that  nothing  can, 
from  that  pleading,  be  presumed  to  the  contrary,  [a) 

(o)  Welf.  Eq.  PI.  3 ;  Mout.  Digest,  10,  and  notes,  Z.  S.  and  D. .-  Co.  Litt. 
303. 

8 


34  GENERAL   PRINCIPLES. 

General  Principles  of  Pleading. 

The  pleadings  in  a  suit  in  equity  are  commenced  on  the  part 
of  the  complainant  by  a  Bill  or  Information.  The  defense 
consists  either  of  a  Demurrer,  which  is  a  defense  by  law  upon 
an  admission  of  the  facts  charged  in  the  bill ;  or  a  Plea,  which 
is  defined  by  Lord  Redesdale  to  be  "  a  special  answer,  showing 
or  relying  upon  one  or  more  things  as  a  cause  why  the  suit 
should  be  either  dismissed,  delayed  or  barred  ;"  (J)  or  an  answer 
to  the  charges  contained  in  the  bill  or  information ;  or  the 
defendant  may  demur  to  one  part  of  the  bill,  plead  to  another, 
and  answer  to  another,  if  the  nature  of  his  case  requires  it.  To 
a  demurrer  the  complainant  may  join  as  in  proceedings  at  law  ; 
and  to  a  plea  or  answer,  reply,  which  is  termed  a  Replication, 
These  various  pleadings  and  their  respective  offices  will  be 
considered  in  subsequent  chapters. 

(&)     Mitf,  Cli.  PI.  177 ;  see  Coop.  Eq.  PI.  233 ;  Beame's  PI.  Eq.  1. 


CHAPTER  II. 

CC>MMENCEMENT    OF   A    SUIT    IN    CHANCERY. 

Section  1.    How  Commenced. 

2.  Where  Comimenced. 

3.  Secukity  for  Costs. 

SECTION  I. 
HOW    COMMENOED. 

By  Bill. —  A  suit  in  chancery  is  commenced  by  filing  a  bill 
or  petition  with  the  clerk  of  the  proper  court.  This  bill  is  in 
the  nature  of  a  petition  addressed  to  the  court  or  chancellor, 
and  contains  a  statement  of  the  facts  out  of  which  the  com- 
plainant's claim  arises,  and  prays  the  relief  to  which  he  considers 
himself  entitled,  {a) 

The  filing  of  the  bill  is  the  commencement  of  the  suit,  and 
any  service  had  therein  on  process  issued,  or  by  publication  of 
notice,  made  prior  thereto,  is  a  nullity.  (5) 

By  Information. —  If  the  suit  is  instituted  on  behalf  of  the 
government,  or  people,  or  those  who  partake  of  the  prerogative 
of  the  same,  such  as  idiots  and  lunatics,  or  whose  rights  are 
under  its  particular  protection,  such  as  objects  of  public  charity, 
etc.,  the  matter  of  complaint  is  presented  to  the  court  by  way  of 
information,  and  not  by  way  of  bill  or  petition,  (c)  by  the  proper 
ofiicers  of  the  crown,  government,  or  people,  as  by  the  attorney 
general  or  state's  attorney.  When  the  suit  immediately  con- 
cerns the  rights  of  the  crown,  government  or  people,  alone,  the 
officers  proceed  purely  by  way  of  information.  {oC)     When  the 

(«)  Story's  Eq.  PL  §  7;  Barton's  Suit  in  Eq.  39;  Rev.  Stat.  (1874)  198; 
Rev.  Stat.  (1877)  184;  Hodgen  vs.  Glittery,  58  111.  431. 

(&)    Hodgen  vs.  Guttery,  58  111.  431. 

(c)  Story's  Eq.  PL  §  7;  Coop.  Eq.  PL  101-107;  Welf.  Eq.  PL  58:  1  Dan. 
Dh.  Pr.  1;  Lord  Red.  7. 

id)    Coop.  Eq.  PL  101,  102;  Welf,  Eq.  PL  59;  Story's  Eq.  PL  §  7. 


36  COMMENCEMENT  OF  SUIT. 

Where  Commenced. 

suit  does  not  immediately  concern  the  rights  of  the  government 
or  people,  it  is  brought  on  the  relation  of  some  person,  whose 
interests  are  affected,  whose  name  is  inserted  in  the  informa- 
tion, and  is  termed  the  relator,  and  he  is  answerable  for  costs. 

The  rules  of  practice  incidental  to  bills  in  chancery  and 
information,  differ  so  slightly  from  each  other,  that  whatever 
is  said  in  this  work  with  respect  to  bills,  may  be  considered,  in 
the  main,  as  applicable  to  informations,  {e)  The  space  allotted 
will  not  admit  of  a  special  reference  to  informations.  • 

SECTION  II. 
WHERE    COMMENCED. 

Illinois  Practice. — The  statute  provides,  that  "  Suits  in 
chancery  shall  be  commenced  in  the  county  where  the  defend- 
ants, or  some  one  or  more  of  them,  resides ;  or  if  the  defendants 
are  all  non-residents,  then  in  any  county ;  or  if  the  suit  may 
affect  real  estate,  in  the  county  where  the  same  or  some  part 
thereof  is  situated.  Bills  for  injunctions  to  stay  proceedings 
at  law,  shall  be  brought  in  the  county  in  which  the  proceed- 
ings at  law  are  had."  (/") 

Where  the  object  of  a  suit  is  not  to  affect  real  estate,  the 
jurisdiction  of  the  court  is  confined  to  the  county  of  the  resi- 
dence of  the  defendants ;  and  service  of  process  upon  a  resident 
of  another  county  will  not  confer  jurisdiction,  {cj) 

A  court  of  chancery  will  entertain  a  bill  for  relief  when  the 
defendant  resides  within  its  jurisdiction,  and  the  relief  sought 
can  be  obtained  by  acting  directly  upon  the  person,  whether 
the  subject  matter  of  the  bill  be  within  its  control  or  not. 
Of  this  character  are  cases  for  a  specific  performance  of  a  con- 
tract for  the  conveyance  of,  or  relating  to,  land  beyond  the 
jurisdiction  of  the  court,  where  the  court  will  compel  a  con- 
veyance in  accordance  with  the  mode  and  form  prescribed  by 
the  laws  of  the  country  in  whi'ch  the  land  is  situated ;  and 

(e)  Story's  Eq.  PI.  §  8;  1  Dan.  Ch.  Pr.  2. 

(/)  Underwood 's  Stat.  Const.  65;  Rev.  Stat.  (1874)198;  Rev.  Stat.  (1877) 
184. 

{<l)  Aiken  vs.  IJoi/d,  28  111.  231. 


COMMENCEMENT   OF   SUIT.  37 

Security  for  Costs. 

should  it  be  necessary,  in  order  to  carry  out  such  a  decree,  the 
defendant  may  be  prevented  by  a  ne  exeat  from  leaV^ing  its 
jurisdiction  pendente  lite.  This  is  the  rule  of  the  common 
law,  and  the  statute  has  not  changed  it.  But  a  court  of  chan- 
cery will  not  entertain  a  bill  where  the  relief  sought  renders 
it  necessary  that  it  should  act  upon  the  specific  thing,  unless 
the  subject  matter  of  the  litigation  is  within  its  jurisdiction. 
Thus,  where  land  is  to  be  affected  by  the  decree,  as  in  the 
cases  of  petition  for  partition,  admeasurement  of  dower,  fore- 
closure of  mortgage,  or  the  enforcement  of  a  mechanic's  lien 
under  the  statute,  the  court  must  be  able  to  control  it  directly, 
or  it  has  no  jurisdiction  of  the  case.  This  is  also  a  rule  of  the 
common  law,  which  the  statute  has  not  changed,  {h) 

SECTION  III. 

SECUKITY    FOK    COSTS. 

When  required. —  If  the  complainant  is  a  non-resident  a 
bond  for  costs  must  be  filed  before  commencing  suit.  (/) 

The  statute  requiring  non-resident  complainants  to  file  a 
bond  for  costs  before  commencement  of  suit,  applies  in  the 
case  of  a  writ  of  error  sued  out  in  the  supreme  court ;  {j)  and 
a  security  for  costs  in  the  circuit  court  is  not  liable  for  costs 
made  against  his  principal  in  the  supreme  court.  (Jc) 

Form  of  hond  for  costs. — The  bond  for  costs  to  be  given 
before  filing  the  bill  in  chancery,  by  a  non-resident,  should  be 
substantially  as  follows : 

(70  Ems  vs.  Hunter,  4  Gilm.  211;  Cooley  vs.  Scarlett,  38  111.  316;  see 
Richards  vs.  Hyde,  21  111.  640. 

(/)  Rev.  Stat.  (1874)  297;  Rev.  Stat.  (1877)  295;  Randolph  vs.  Emerick, 
13  111.  344;  O'Coniicll  vs.  Rea,  51  111.  306;  IVhitehtirst  vs.  Coleoi,  53'  III. 
247. 

ij)  Ripleif  vs.  Morris.  2  Gilm.  381;  Hickman  vs.  Haines,  5  Gilm.  20; 
Roberts  vs.  Fahs,  32  111.  474. 

(k)    Clark  vs.  Quackenhoss,  28  111.  112. 


38  COMMENCEMENT  OF  SUIT. 

Bonds  for  Costs. 


No.  1.     Bond  for  costs  hy  a  non-resident. 

In  the  Court  of  the  Coimtj  of in  the  State  of 

Illinois. 
A.  B.    ) 
vs.       >  In  Chancery. 
CD.   ) 

I  do  hereby  enter  myself  security  for  all  costs  which  may 
accrue  in  the  above  cause. 

Dated  this day  of ,  18—.  E.  F. 

If  a  suit  is  commenced  by  a  non-resident  without  filing  a 
bond  for  costs,  the  court  will,  on  motion,  dismiss  the  same, 
and  the  solicitor  tiling  the  bill  will  be  required  to  pay  all  costs 
accruing  thereon,  unless  the  bond  shall  be  tiled  within  such 
time  as  shall  be  allowed  by  the  court,  and  when  so  tiled  it  will 
relate  back  to  the  commencement  of  the  suit ;  and  the  right 
to  require  security  for  costs  shall  not  be  waived  by  any  pro- 
ceedings in  the  cause.  (V) 

(?)  Rev.  Stat.  (1874)  297;  Rev.  Stat.  (1877)  295;  see  Baker  vs.  Palmer, 
83  111.  568. 

See  observations  upon  bonds  for  costs  in  Puterbaugh's  Common  Law 
Pleading  and  Practice,  pp.  39-43. 


CHAPTER  III. 


BILLS    m    CHANCERY. 


Section  1. 

Division  of  Bills. 

2. 

Constituent  Parts  of  an  original  Bn.T., 

3. 

The  Address. 

4. 

The  Introduction. 

5. 

The  Premises,  or  Stating  Part. 

6. 

Confederating  Part. 

7. 

Charging  Part. 

8. 

Jurisdictional  Clause. 

9. 

Interrogating  Clause. 

10. 

Prater  for  Relief. 

11. 

Prayer  for  Process. 

12. 

Frame  op  a  Bill. 

13. 

Signing  op  Bills. 

14. 

Swearing  to  Bills. 

15. 

Pahties  to  Bills. 

16. 

Ancient  Bills. 

SECTION  I. 

DIVISION    OF    BILLS. 

Bills  in  chancery  are  divided  into  tliose  which  are  original^ 
and  those  which  are  not  original.  If  they  relate  to  matters 
which  have  not  previously  been  brought  before  the  court,  they 
are  termed  original  bills,  such  as  form  the  greater  part  of  the 
business  of  a  court  of  cliancery.  Bills  not  original  are  those 
which  relate  to  some  matter  already  litigated  in  the  court  by 
the  same  parties,  and  which  are  either  an  addition  to,  or  a 
continuance  of,  an  original  bill,  or  both,  (a)  There  is  another 
class  of  bills,  which  is  of  a  mixed  nature,  and  sometimes  par- 
takes of  the  character  of  both  of  the  others.  Thus,  for  example, 
bills  brought  for  the  purpose  of  cross-litigation,  or  of  contro- 
verting, or  suspending,  or  reversing  some  decree  or  order  of 

fa)  Story's  Eq.  PI.  §  16  ;  1  Barb.  Cli.  Pr.  34 ;  Mitf.  Eq.  PI.  23 ;  Coop.  Eq.. 
PI.  43 ;  Barton's  Suit  in  Eq.  41. 


40  BIIJ.S   IN  CHANCERY. 

Division  of  Bills  —  Constituent  Parts  of. 

the  court,  or  of  obtaining  the  benefit  of  a  former  decree,  or  of 
carrying  it  into  execution,  are  not  considered  as  strictly  a  con- 
tinuance of  the  former  bill,  but  in  the  nature  of  original  bills.  (5) 
And  if  these  bills  require  new  facts  to  be  stated,  or  new  parties 
to  be  brought  before  the  court,  they  are  so  far  strictly  of  the 
nature  of  supplemental  bills,  (c) 

Besides  the  different  divisions  of  bills  here  enumerated, 
original  bills  are  usually  divided  into :  ji/rst^  original  bills  pray- 
ing relief;    and,  secondly^   original    bills  not   praying  relief. 

Original  bills  praying  relief,  are  again  subdivided  into  three 
heads:  firsts  original  bills,  praying  the  decree  of  the  court 
touching  some  right  claimed  by  the  person  exhibiting  the  bill, 
in  opposition  to  rights  claimed  by  the  person  against  whom  the 
bill  is  exhibited ;  secondly^  bills  of  interpleader ;  and,  thirdly, 
certiorari  bill,  {d) 

Original  bills  not  praying  relief,  are  of  two  kinds ;  first, 
bills  to  perpetuate  the  testimony  of  witnesses ;  and,  secondly, 
bills  of  discovery. 

Original  bills  praying  relief  are  those  most  usually  filed, 
and  they  will  be  more  fully  considered  than  those  of  the  other 
Bort.  Bills  of  every  kind  will,  however,  receive  consideration 
under  proper  heads. 


SECTION  II. 
CONSTITUENT    PARTS    OF    AN    OKIGINAL    BILL. 

The  ordinary  form  and  structure  of  a  bill  in  equity,  though 
not  originally  prescribed  by  any  positive  regulations,  has  been 
long  established  by  usage.  The  rules  which  have  recently 
been  promulgated  by  the  superior  courts  of  chancery  in  Eng- 
land, and  by  the  Supreme  Court  of  the  United  States,  {e)  have 
introduced  many  changes  in  the  ancient  precedents,  and,  if 

(6)    Story's  Eq.  PI.  §  16  ;  Coop.  Eq.  PI.  16. 

(c)  lb. 

(d)  Story's  Eq.  PI,  ^  18 ;  Dau.  Oh.  Pr.  352. 

(e)  Rules  20-24  of  the  Su[)remc  Court  of  the  U.  S.,  revised  and  corrected 
Dec.  T.  1870. 


BILLS   IN   CHANCERY.  41 

The  Address  —  The  Introduction. 

generally  followed,  will  tend  to  reduce  pleading  and  practice 
in  equity  to  the  simplicity  and  certainty  of  a  written  code  ;  {/) 
and  prevent  unnecessary  costs  and  expenses,  and  promote 
brevity,  succinctness,  and  directness  in  the  allegations  of  bills 
and  answers. 

It  was  formerly  supposed  that  nine  distinct  parts  were  neces- 
sary to  every  bill  in  equity ;  and  although  some  of  these  are 
now  admitted  to  be  useless,  it  will  be  convenient,  in  analyzing 
the  bill,  to  retain  the  ancient  divisions.  Forms  of  the  constit- 
uent parts  of  an  original  bill  will  be  given  in  the  next  chapter. 

SECTION  III. 

I.     THE   ADDRESS. 

In  England,  the  bill  is  addressed  to  the  Lord  Chancellor,  or 
other  person  having,  for  the  time  being,  the  custody  of  the 
great  seal.  In  the  United  States,  the  bill  is  usually  addressed 
to  the  judge  or  justices  of  the  court  in  which  the  suit  is  brought, 
by  their  proper  designation.  This  address,  of  course,  contains 
the  appropriate  and  technical  description  of  the  court,  and  must 
be  varied  accordingly,  {g)  A  bill  is  defective,  which  is  not 
-addressed  to  the  court  by  its  proper  and  legal  style.  (A) 

SECTION  IV. 
n.     THE    LNTEODUCTION. 

The  introductory  part  should  contain  the  names  and  descrip- 
tion of  the  persons  exhibiting  the  bill,  commonly  called,  in  the 
bill,  by  the  title  of  "  your  orators  and  oratrixes,"  according  to 
their  sex ;  or  simply  described  as  the  "  complainant,"  at  the 
option  of  the  pleader.  The  names  of  the  complainants,  and  their 
places  of  residence,  should  be  set  out  in  the  bill,  with  so  much 
certainty,  that  the  court  and  adverse  party  may  know  where  to 

(/)  Barton's  Suit  in  Eq.  41. 

ijg)    Story's  Eq.  PI.  §  26  ;  Mitf.  Eq.  PL  42  ;  Coop.  Eq.  PI.  9. 

(A)   Bvw  vs.  Britten,  3  Chicago  Legal  News,  33. 


42  BILLS   IN   CHANCERY. 

The  Premises,  or  Stating  Part. 

resort  to  compel  obedience  to  any  order,  rule  or  process  of  the 
court,  and  also  for  the  payment  of  costs,  (i) 

By  the  20th  rule  of  practice  for  the  courts  of  equity  of  the 
United  States,  it  is  required  that  "  every  bill,  in  the  introduc- 
tory part  thereof,  shall  contain  the  names,  places  of  abode,  and 
citizenship  of  all  the  parties,  plaintiffs  and  defendants,  by  and 
against  whom  the  bill  is  brought." 

The  jurisdiction  of  the  United  States  court,  in  most  cases, 
depends  upon  the  citizenship  of  the  parties ;  therefore,  such 
citizenship  must  appear  in  the  face  of  the  bill ;  otherwise, 
the  bill,  in  any  stage  of  the  proceedings,  may  be  dismissed  on 
motion ;  (j)  nor  is  it  suflficient  to  describe  the  complainant  as 
"  citizen  or  resident."  {k)  The  want  of  a  proper  averment,  in 
respect  of  citizenship,  in  the  United  States  courts,  may  be  taken 
advantage  of  by  way  of  demurrer.  (Z) 


SECTION  V. 
rn.     THE    PKEMISES,    OR    STATING    PAET. 

This  part  of  the  bill  will,  of  course,  vary  with  each  particular 
cause  of  complaint.  It  contains  a  nari-ative  of  the  facts  and 
circumstances  of  the  complainant's  case,  and  of  the  wrong  oi 
grievance  of  which  he  complains,  the  names  of  the  persons  by 
whom  committed,  and  against  whom  he  seeks  redress,  (m) 
All  the  material  facts,  of  which  the  complainant  proposes  to 

(i)  Lord  Red.  43  ;  Dan.  Cli.  Pr.  408  ;  Story's  Eq.  PI.  §  26  ;  Barton's  Suit 
in  Eq.  42 ;  Smith's  Ch.  Pr.  82,  83  ;  Howe  vs.  Harvey,  8  Paige,  73 ;  Gore  vs. 
Pettis,  4  Sauud.  Oh.  403  ;  Vose  vs.  Philhrick,  3  Story,  335. 

{j)  Howe  vs.  Harvey,  8  Paige,  Cli.  R.  73;  Dodge  vs.  Perkins,  4  Mason, 
435,  and  cases  there  cited  ;  Bingham  vs.  Cabot,  3  Dall.  382  ;  Jackson  vs.  Ash- 
ton,  8  Pet.  148. 

(k)    Bingham  vs.  Cahot,  3  Dall.  382 ;  Jackson  vs.  AsJiton,  8  Pet.  148, 112. 

(f)    Story's  Eq.  PI.  §  49  ;  Winnipiseogee  Lake  Co.  vs.  Worster,  9  Foster,  433. 

(m)  Barton's  Suit  in  Eq.  27  ;  Story's  Eq.  PI.  §  27 ;  Mitf.  Eq.  PI.  43 ; 
Coop.  Eq.  PI.  9;  Equity  Draftsman,  4,  note  c;  Archibald  vs.  Means,  5 
Ired.  Eq.  R.  220 ;  Wright  vs.  Dame,  22  Pick.  55 ;  Lingan  vs.  Henderson 
1  Bland,  236  ;  Estep  vs.  Watkins,  Id.  486  ;  Oliver  vs.  Palmer,  11  Gill  &  J. 
426 ;  Haywnrd  vs.  Carroll,  4  Har.  &  J.  518. 


BILLS   IN   CHANCERY.  43 

The  Premises,  or  Stating  Part  —  Certainty  Required. 

offer  evidence,  must  be  stated,  and,  as  a  general  rule,  he  will 
not  be  permitted  to  offer,  or  require,  evidence  of  any  such  fact 
not  so  stated,  {n)  The  facts,  as  stated  in  the  bill,  constitute 
the  only  ground  of  relief,  {o)  A  general  charge  or  statement, 
however,  of  the  matter  of  fact  is  sufficient ;  and  it  is  not  neces- 
sary to  charge  minutely  all  the  circumstances  which  may  con- 
duce to  prove  the  general  charge ;  for  these  circumstances  are 
properly  matters  of  evidence,  which  need  not  be  charged  in 
order  to  let  them  in  as  proofs,  {j)) 

This  part,  constituting  the  real  substance  of  the  bill,  upon 
which  the  court  is  called  to  act,  requires  great  skill  and  judg- 
ment to  frame  it  accurately ;  and  if  it  has  not  the  proper  legal 
certainty,  the  defect,  as  we  shall  presently  see,  unless  removed, 
may  become  fatal  in  every  subsequent  stage  of  the  cause,  (q) 

Certainty  required. — The  bill  must  have  a  reasonable  cer- 
tainty, but  need  not  set  out  the  matter  with  that  decisive  and 
catagorical  certainty  which  is  requisite  in  pleading  at  common 
law.  (r)  It  should,  however,  state  the  right,  title,  or  claim  of 
the  complainant,  with  accuracy  and  clearness ;  and  it  should  in 
like  manner  state  the  injury  or  grievance  complained  of,  and 
the  relief  asked  of  the  court.  The  other  material  facts  ought 
to  be  plainly  yet  succinctly  alleged,  and  with  all  necessary  and 


{n)  Story's  Eq.  PI.  §  28 ;  Iniham  vs.  Child,  1  Bro.  Cli.  94 ;  Wilkes  vs. 
Rogers,  6  Jolins.  R.  565 ;  Gordon  vs.  Gordon,  3  Swanst.  472 ;  Sidney  vs. 
Sidney,  3  P.  Wms.  276  ;  Watkyns  YS.Watkyns,%  Atk.  96  ;  Peacock  vs.  Terry, 
9  Georgia,  148. 

{o)  Skinner  vs.  Bailey,  7  Conn.  496;  Parker  vs.  Garter,^  Mnnf.  273; 
Cowles  vs.  Buchanan,  3  Ired.  Ch.  R.  374 ;  Miller  vs.  Furse,  1  Bailey,  Ch.  R. 
187;  United  States  Bank  vs.  Shultz,  ?>  Ham.  61;  Pinson  vs.  Williams,  23 
Miss.  64. 

ip)  Story's  Eq.  PI.  §  28  ;  Chicot  vs.  Lequnse,  2  Ve.s.  317,  318  ;  Wheeler  vs. 
Trotter,  3  Swanst.  177  ;  Nesmith  vs.  Calcert,  1  Wood  &  Minn.  34 ;  Clarke  vs. 
Periam,  2  Atk.  337  ;  Dunham  vs.  Eaton  &  II.  R.  R.  Co.  1  Bond,  492.     - 

(?)  Story's  Eq.  PI.  g  27;  Flint  vs.  Field,  2  Anst.  343;  Coop.  Eq.  PI, 
11 ;  White  vs.  Yatc,  7  Vt.  R.  357  ;  Harrison  vs.  Nixon,  9  Pet.  483 ;  Langdon 
vs.  Goddard,  2  Story,  267. 

(r)  1  Barb.  Cli.  Pr.  38  ;  3  Woodes.  Lect.  55,  p.  870 ;  Cockrell  vs.  Gurley, 
26  Ala.  405 ;  Birlcy  vs.  Staley,  5  Gill  &  J.  R.  432 ;  Tiernan  vs.  Poor,  1  Gill 
&  J.  R.  216 ;   Surget  vs.  Byers,  1  Hemp.  715. 


44  BILLS   IN   CHANCERY. 

Tlie  Premises,  or  Stating  Part  —  Certainty  Required. 

convenient  certainty  as  to  the  essential  circumstances  of  time, 
place,  manner,  and  other  incidents,  {s) 

A  party  seeking  the  aid  of  a  court  of  equity  should  show 
distinctly  and  unambiguously  all  the  facts  necessary  to  entitle 
him  to  that  aid.  (t)  The  right,  title  and  interest  of  the  complain- 
ant should  be  stated  with  accuracy,  clearness  and  precision,  and 
the  proof  in  the  case  must  correspond  with  the  allegations ;  (w) 
but  the  claims  of  the  defendant  may  be  stated  in  general  terms.('y) 

The  complainant  is  not  bound  to  set  forth  his  adversary's 
rights  with  the  same  particularity  as  his  own.  And  where  the 
extent  and  character  of  those  rights  are  more  particularly 
within  the  knowledge  of  the  adverse  party,  it  is  sufficient  to 
allege  generally  that  the  defendant  has,  or  claims  to  have,  some 
rights  relative  to  the  subject  matter  of  the  controversy,  leaving 
hmi  to  disclose  in  his  answer  the  nature  and  extent  of  them,  {w) 
Or  the  complainant  may  anticipate  a  defense,  and  allege  any 
matter  necessary  to  explain  or  avoid  it ;  or  omitting  to  do  so, 
on  the  coming  in  of  the  answer  he  may  introduce  the  new 
matter  into  the  case  by  an  amendment  to  the  bill,  (a?) 

The  material  allegations  of  the  bill  must  be  clearly  and 
positively  averred ;  (■?/)  and  not  by  way  of  recital.  And  a 
party  cannot  have  relief  upon  a  case  not  stated  in  his  bill.  (0) 

(s)  Mitf .  Eq,  PI.  41 ;  Coop.  Eq.  PI.  5 ;  Shepard  vs.  Shepard,  6  Conn.  R.  37  ; 
Egremont  vs.  Cowell,  5  Beav.  620-623. 

{t)  Shepard  vs.  Shepard,  6  Conn.  R.  37 ;  United  States  Bank  vs.  Shultz, 
9  Ham.  R.  61 ;  Mercier  vs.  Lewis,  39  Cal.  532 ;  Egremont  vs.  Cowell,  5  Beav. 
620 ;  Flint  vs.  Field,  2  Anst.  543 ;   Waugh  vs.  Bobbins,  33  111.  182. 

(u)  Fitzpatrick  vs.  Beatty,  1  Gilm.  454 ;  Webster  vs.  Webster,  55  111.  325 ; 
Oibson  vs.  Carson,  3  Ala.  R.  421 ;  Thayer  vs.  Lane,  Walk.  Cli.  R.  200  ;  Knox 
vs.  Smith,  4  How.  U.  S.  R.  298;  Tilton  vs.  Tilton,  9  New  Hamp.  385  ;  Harris 
vs.  Knickerbocker,  5  Wend.  608 ;  Seltz  vs.  JJnna,  6  Wall.  327. 

(«)    Story's  Eq.  PI.  §  255 ;  Eq.  Draft.  5,  note  c. 

(w)  Morgan  vs.  Smith,  11  111.  194 ;  Barring  vs.  Nash,  1  Ves.  &  B.  R.  551 ; 
1  Barb.  Ch.  Pr.  40 ;  Aikin  vs.  Ballard,  Rice  Ch.  13 ;  see  Van  Antwerp  vs. 
Hulburd,  8  Blatclif.  U.  S.  C.  C.  282. 

{x)    White  vs.  Morrison,  11  111.  361. 

iy)  Primmer  vs.  Patton,  32  111.  528;  Wright  vs.  Dame,  22  Pick.  55; 
McElwain  v.  Willis,  9  Wend.  548  ;  McJntyre  vs.  Trustees  etc.  6  Paige,  Ch.  R. 
239;  Spense  vs.  Duren,  3  Ala.  250;  Daniels  vs.  Taggart,  1  Gill  &  J.  311; 
Hood  vs.  Inman,  4  .Johns.  Ch.  R.  437  ;  Edwards  vs.  Chilton,  4  W.  Va.  352. 

(z)  White  vs.  Yaw,  7  Vt.  357 ;  Wood  vs.  Genet,  8  Paige,  Ch.  R.  137 ; 
Page  vy.  Greeley,  75  111.  400;  Morton  vs.  Smith,  86  111.  117. 


BILLS  IN   CHANCERY.  45 

The  Premises,  or  Stating  Part  —  Certainty  Required. 

The  pleadings  should  consist  of  nothing  but  a  clear  statement 
of  facts.  All  matters  of  inference  or  argument  are  impertinent, 
and  will  be  expunged,  and  usually  with  costs,  {a)  Whatever  is 
intended  to' be  proved  should  be  alleged,  otherwise  evidence  can- 
not be  received  of  the  facts ;  (5)  and  the  facts  ought  to  be  so  fully 
and  particularly  stated  that  the  chancellor  can  see,  from  the  face 
of  the  bill,  whether  or  not  he  has  jurisdiction,  and,  supposing 
the  same  to  be  true,  tell  precisely  what  decree  to  render,  (c)  And 
if  a  bill,  as  presented,  does  not  exhibit  a  case  for  the  interfer- 
ence of  a  court  of  equity,  it  may  be  dismissed  or  demurred  to 
for  want  of  equity ;  (d)  but  it  will  not  be  dismissed  for  that 
cause,  unless  it  is  radically  such,  so  that  no  discovery  or  proof 
can  make  it  a  proper  subject  of  equitable  jurisdiction,  {e)  K  it 
shows  grounds  for  relief,  but  states  them  imperfectly,  it  may  be 
aided  by  the  proofs  or  admissions ;  {/)  but  if  the  facts  are  so 
imperfectly  stated  that  the  court  cannot  decide  upon  the  merits^ 
from  the  facts  alleged,  the  bill  will  be  dismissed.  (^)  A  bill 
must,  at  the  final  hearing,  show  that  the  matter  of  it  is  within 
the  jurisdiction  of  a  court  of  chancery,  [h) 

The  material  tacts  relied  upon  for  relief  must  be  so  distinctly 
alleged  in  the  bill,  that  the  defendant  can  readily  put  them  in 
issue,  or  the  relief  cannot   be   granted,  though  the  facts  be 

(a)  Hood  vs.  Itiman,  4  Johns.  Ch.  Rep.  437;  Chalmers  vs.  Chalmers, 
4  Gill  &  J.  420 ;  Sheldon  vs.  Bobbins,  2  Root,  190. 

(6)  Hayward  vs.  Carroll,  4  Har.  &  J.  518 ;  Parker  vs.  Carter,  4  Munf. 
273 ;  Eodgins  vs.  White,  2  Ired.  Ch.  R.  575  ;  Crocket  vs.  Lee,  7  Wheat.  522 ; 
Story'sEq.  PL  §28,  257. 

(c)  Pennebaker  vs.  Wathan,  2  A.  K.  Marsh.  315;  Dunham  vs.  Eaton  etc. 
B.B.  Co.  1  Bond,  492. 

{d)  Beed  vs.  Johnson,  24  Maine,  322 ;  Morel  vs.  Houston,  Charl.  R.  M 
284 ;  Winkler  vs.  Winkler,  40  111.  179  ;  Sheldon  vs.  Harding,  44  111.  68 ; 
Vieley  vs.  Thompson,  44  111.  9 ;  Bruen  vs.  Bruen,  43  111.  409. 

(e)  LeBoy  vs.  Vecder,  1  Johns.  Ch.  R.  417 ;  Holman  vs.  Holman,  3  Desau. 
210;  Wright  vs.  Dame,  22  Pick.  55. 

(/)  Edwards  vs.  Massey,  1  Hawks,  359  ;  Msher  vs.  Stone,  8  Scam.  68. 

(g)  Fowler  vs.  Sanders,  4  Call.  361 ;  Wliittaker  vs.  Degraffenreid,  6  Ala. 
303;   yfhite  vs.  Lewis,  2  A.  K.  Marsh.  123;  Clark  vs.  Bell,  2  B.  Monroe  1. 

(A)  Estep  vs.  Watkins,  1  Bland,  486 ;_  Toicnshend  vs.  Duncan,  2  Id.  45; 
Herbert  vs.  Hobbs,  3  Stewart,  9 ;  Moore  vs.  Dail,  Id.  155  ;  McOrew  vs.  Tom- 
leckbee  Bank,  5  Porter,  547 ;  Meyer  vs.  Pfeiffer,  50  111.  485. 


46  BILLS   IN   CHANCERY. 

The  Premises,  or  Stating  Part  —  Certainty  Required. 

proved ;  {i)  and  no  admission  in  an  answer  to  a  bill  can,  under 
any  circumstances,  lay  the  foundation  for  relief  under  any 
fipeciiic  head  of  equity,  unless  it  be  substantially  set  forth  in  the 
bill,  {j)  And  a  defect  in  the  charging  part  of  a  bill  cannot  be 
supplied  by  a  subsequent  interrogatory  ;  and  the  interrogatories 
are  to  be  construed  by  the  charging  part  of  the  bill ;  (k)  nor  can 
defects  in  the  charging  part  be  supplied  by  any  subsequent 
proceedings  in  the  case.  (Z) 

Where  the  facts  stated  in  the  bill  are  disproved,  or  are  defect- 
ively stated,  relief  may  be  granted  in  some  instances  upon  the 
facts  stated  in  the  answer,  (m) 

Where  a  party  comes  into  equity  to  open  a  settled  account 
on  the  ground  of  error,  the  bill  must  contain  a  precise  specifi- 
cation of  the  errors,  othei'wise  the  complainant  will  not  be 
allowed  to  prove  them  at  the  hearing,  even  though  the  settle- 
ment of  the  account  is  expressed  to  be  "  errors  excepted," 
which  is  the  usual  form  of  settling  accounts.  {71) 

Where  a  party  has  an  adequate  remedy  at  law,  a  court  of 
equity  will  not  interfere  ;  (0)  except  in  cases  of  fraud.  Fraud  is 
a  matter  of  chancery  jurisdiction,  and  that  court  would  not 

(i)  Harding  vs.  Handy,  11  Wheat.  U.  S.  103 ;  Skinner  vs.  Baily,!  Conn. 
496 ;  Wiggin  vs.  Mayor  etc.  9  Paige,  Ch.  R.  16  ;  Gibson  vs.  Carson,  3  Ala.  421 ; 
Knox  vs.  Smith,  4  How.  298 ;  Kidd  vs.  Manley,  6  Cush.  156. 

ij)  Jackson  v3.  Ashton,  11  Pet.  229;  Thomases.  Warner,  15  Vt.  110; 
Story's  Eq.  PI.  §  28, 257, 263  ;  Crocker  vs.  Lee,  7  Wheat.  522 ;  Maury  vs.  Lewis, 
10  Yerger,  115. 

(Jc)  Mechanics'  Bank  vs.  Levy,  3  Paige,  Ch.  R.  606 ;  Cowles  vs.  Buchanan, 
3  Ired.  Ch.  374  ;  Parker  vs.  Carter,  4  Munf .  273  ;  Kisor  vs.  Stancifer,  Wright, 
323;  Story's  Eq.  PI.  §27. 

(J)  Lingan  vs.  Henderson,  1  Bland,  236 ;  Townshend  vs.  Duncan,  2  Id.  45  ; 
West  vs.  Hall,  3  Har.  &  J.  221 ;  Edwards  vs.  Massey,  1  Hawks,  359. 

(to)  Deatley  vs.  Murphy,  3  A.  K.  Marsh.  474 ;  Maury  vs.  Lewis,  10  Yerger, 
115.  But  see  Jackson  vs.  Ashton,  11  Pet.  229 ;  Thomas  vs.  Warner,  15  Vt. 
110;  Story's  Eq.  PI.  §  257,  264;  DiUey  vs.  Barnard,^  QiW  &  J.  171. 

{n)    Mebane  vs.  Mebane,  1  Ired.  Eq.  R.  403 ;  Baker  vs.  Biddle,  1  Bald.  394. 

(0)  Smith  vs.  Powell,  50  111.  21 ;  Thomas  vs.  Caldwell,  Id.  139  ;  School  etc. 
vs.  Miller, ^i  111.  338;  Winkler  vs.  Winkler,  40  111.  179  ;  Gardner  vs.  Kersey, 
39  Geo.  661 ;  Bassett  vs.  Brown,  lOU  Mass.  355  ;  OlUing  vs.  Luitjens,  32  111.  23 ; 
Taylor  /.s.  Turner  87  111.  296. 


B1LL8   iS    CilANCEUV.  47 

The  Premises,  or  Stating  Part  —  Certainty  Required. 

lose  it  merely  by  the  statute  conferring  a  similar  jurisdiction 
upon  courts  of  law.  (jf) 

A  complainant  must  allege  in  his  bill,  that  he  has  done,  or 
oflered  to  do,  or  is  ready  to  perform,  everything  necessary  to 
entitle  him  to  the  relief  he  seeks,  or  a  sufficient  excuse  for  its 
non-performance,  {q)  It  is  a  maxim  of  equity,  of  universal 
application,  that  he  who  seeks  equity  must  do  equity,  (r) 

Where  the  facts  are  charged  in  the  bill  to  be,  or  must,  from 
the  necessity  of  the  case,  be,  within  the  knowledge  of  the 
defendant  only,  a  precise  allegation  is  not  necessary.  (5) 

A  bill  may  be  framed  with  a  double  aspect,  so  that,  if  one 
ground  fail,  the  complainant  may  rely  upon  anotlier,  which 
may  be  inconsistent  with  the  former,  (t) 

Where  relief  is  sought,  on  the  ground  of  fraud  or  usury,  the 
charges  should  not  be  general,  but  the  facts  and  circumstances 
upon  which  the  charge  is  founded  should  be  fully  and  speci- 
fically stated,  {u)  If  an  allegation  be  equivocal,  and  two  mean- 
ings present  themselves,  the  one  most  unfavorable  to  the  pleader 
will  be  adopted,  (y) 

{p)  Babcock  vs.  McCamant,  53  111.  215  ;  Beaugenon  vs.  Turcotte,  Breese, 
167;  Armstrong  vs.  Caldwell,  %  Scam.  418;  Weiriek  vs.  DeZoya,2  Gilm. 
388;  Scott  vs.  Whiiloio,  20  111.  310;  Glastetibury  vs.  McDonald,  44  Vt.  450; 
Freeman  vs.  Keagan,  26  Ark.  373. 

(q)  Oliver  vs.  Palmer,  11  Gill  &  J.  426 ;  Walburn  vs.  Ingilby,  1  Mylne  & 
Keene,  61 ;  DeWolfws. Pratt,  42  111.  198  ;  Warner  vs.  Richmond,  53.  111.  52  ; 
Board  of  Supervisors  vs.  Henneberry,  41  111.  179. 

(r)    Corby  vs.  Bean,  44  Mo.  379 ;  Stowe  vs.  Russell,  36  111.  18,  29. 

(«)    Aikin  vs.  Ballard,  Rice,  Cli.  13;  Morgan  vs.  Smith,  11  111.  194. 

{t)  Varick  vs.  Smith,  5  Paige,  Ch.  R.  137 ;  Murphy  vs.  Clark,  1  S.  & 
M,  221 ;  Baines  vs.  McGee,  Id.  208 ;  Hart  vs.  McKeen,  Walker's  Cli.  417. 

(u)  Newell  vs.  Bureau  Co.  37  111.  253 ;  Elston  vs.  Blanchard,  2  Scam.  420  ; 
Ilovey  vs.  Holcomb,  11  111.  660 ;  McConnel  vs.  Gibson,  12  111.  128 ;  Klein  vs. 
Horine,  47  111.  430 ;  Henry  Co.  vs.  Winnebago  Drain  Co.  52  111.  299  ;  Leicis 
vs.  Lewis,  9  Mo.  183 ;  Miller  vs.  Colton,  5  Geo.  516 ;  Witherspoon  vs.  Carmi- 
chael,  6  Ired.  Eq.  143;  Fraser  vs.  Hart,  2  Strobli.  Eq.  250  ;  Steed  vs.  Baker, 
13  Gratt.  ;i:80 ;  Smell  vs.  Boudinot,  1  Stockt.  N.  J.  381 ;  Moore  vs.  Green,  19 
How.  U.  S.  69 ;  Very  vs.  Levy,  13  How.  U.  S.  345 ;  Badger  vs.  Badger,  2 
Wall.  87 ;  Langdon  vs.  Goddard,  2  Story,  267 ;  Magniac  vs.  Thompson,  2 
Wall.  Jr.  C.  C.  209. 

(•»)  Holligan  vs.  C  &  R.  1.  B.  R.  Co.  15  111.  558 ;  Lemon  vs.  Stevenson,  36 
m.  49 ;  Vining  vs.  Leeman,  45  111.  246  ;  Happy  vs.  Morton,  33  111.  398 ;  West 
vs.  Schnebly,  54  111.  523. 


48  BILLS   IN   CHANCERY. 

The  Premises,  or  Stating  Part  —  Exhibits  —  Multifariousness. 

Exhibits. —  If  a  bill  makes  an  instrument  a  part  thereof,  with- 
out setting  forth  the  contents,  or  annexing  a  copy,  it  is  bad  on 
demurrer,  {w)  The  exhibits  are  not  a  part  of  the  bill,  but  are 
part  of  the  proof,  and  cannot  aid  defective  statements  in  the 
bill,  {x)  Copies  of  deeds,  filed  with  the  bill  as  exhibits,  are 
made,  in  legal  intendment,  portions  thereof,  and  should  be 
objected  to  before  the  hearing,  if  at  all.  {y)  And  where  the 
execution  of  a  deed  has  been  admitted,  in  the  answer,  and  a 
copy  has  been  filed,  as  an  exhibit,  it  cannot  be  objected  to  for 
the  first  time  at  the  trial,  (z) 

The  bill  must  state  the  whole  subject  —  kst>  not  too 
MANY  SUBJECTS — Matters  in  litigation  not  divisible.  The  bill 
must  be  brought  for  the  whole  subject  in  dispute.  The  court 
will  not  permit  a  bill  to  be  brought  for  a  part  of  a  matter  only, 
so  as  to  expose  a  defendant  to  be  harassed  by  repeated  litiga- 
tions concerning  the  same  thing ;  [a)  nor  for  one  of  two  claims 
upon  the  same  defendant,  (b) 

Multifariousness. —  As  the  bill  should  not  omit  anything 
which  is  material  to  state,  it  is  equally  important  that  it  should 
not  run  into  the  opposite  defect,  and  attempt  to  embrace  too 
many  objects ;  it  being  a  rule  in  equity  that  two  or  more  dis- 
tinct subjects  cannot  be  included  in  the  same  suit.  The  oflfense 
against  this  rule  is  termed  multifariousness,  and  will  render  a 
bill  liable  to  demurrer,  (c)  As  to  what  constitutes  multifari- 
ousness, it  is  impossible  to  lay  down  a  general  rule  ;  every  case 
must  be  governed  by  its  own  circumstances,  and  the  court  must 

(to)  Martin  vs.  McBryde,  3  Ired.  Ch.  531 ;  King  vs.  Trice,  3  Ired,  Ch. 
568. 

(x)    Gaton  vs.  Willis,  5  Ired.  Ch.  335. 

{y)    Surget  vs.  Byers,  1  Hemp.  715. 

(z)    Chreen  vs.  Campbell,  2  Jones'  N.  C.  Eq.  R.  446. 

(a)    Mitf.  Eq.  PI.  133 ;  1  Barb.  Ch.  Pr.  40. 

(6)    Purfoy  vs.  Purfoy,  1  Vern.  29 ;  1  Barb.  Ch.  Pr.  40. 

(c)  1  Dan.  Ch.  Pr.  437  ;  1  Barb.  Ch.  Pr.  40 ;  Supervisors  vs.  State's  Attorney, 
31  111.  74 ;  Oliver  vs.  Piatt,  3  How.  U.  S.  R.  333 ;  Many  vs.  Beekman  Iron 
Co.  9  Paige,  Ch.  R.  188  ;  Luckett  vs.  White,  \Q  Gill  and  J.  480;  Abraham  vs. 
Plutora,  3  Wend.  538 ;  Thurman  vs.  Sheldon,  10  Yerger,  383  ;  Buffalow  vs 
Buffalow,  2  Ired.  Ch.  113  ;  Stuart  vs.  Coalter,  4  Rand.  74. 


BILLS   IN    CHANCEKY.  49 

The  Premises,  or  Stating  Part  —  Multifariousness. 

exercise  a  sound  discretion  on  the  subject,  {d)  Joint  and  sepa- 
rate demands  cannot  be  joined  in  a  bill  without  rendering  it 
multifarious,  (e)  And  as  a  bill  by  the  same  complainant, 
against  the  same  defendant,  for  different  matters,  would  be 
considered  multifarious,  so  a  fortiori^  would  a  bill  by  several 
complainants,  demanding  distinct  matters  against  the  same 
defendant.  (/")  But  a  bill  does  not  become  multifarious  because 
all  the  complainants  are  not  interested  to  an  equal  extent,  {g) 

When  the  object  of  the  bill  is  single,  to  establish  and  obtain 
relief  for  one  claim  in  which  all  the  defendants  may  be  inter- 
ested, it  is  not  multifarious,  although  the  defendants  may  have 
different  and  separate  interests ;  (A)  thus,  several  underwriters 
on  a  policy  of  insurance  may  join  in  a  bill  in  equity  against 
the  assured.  {%)  A  bill  brought  against  several  defendants,  seek- 
ing redress  for  injuries  arising  out  of  transactions  with  them 
separately,  at  different  times,  and  relating  to  different  subjects, 
would  be  bad  for  multifiiriousness.  (^')  Two  good  caiTses  of 
action,  arising  out  of  the  same  transaction,  in  which  all  the 
defendants  are  interested  in  the  same  claim  of  right,  may  be 
joined  in  one  suit  without  being  multifarious.  Qc)  But  if  a  claim 

(d)  Oaines  vs.  Chew,  3  How.  U.  S.  R.  619 ;  Warren  vs.  Warren,  56  Maine, 
360 ;  Oliver  vs.  Piatt,  3  How.  U.  S.  333 ;  Id.  2  McLean,  267  ;  Shields  vs. 
Thomas,  18  How.  U.  S.253  ;  Fitch  vs.  Creighton,  24  How.  U.  S.  159  ;  McLean 
vs.  Laf.  Bank,  3  McLean,  415  ;  Sedam  vs.  Williams,  4  McLean,  55. 

(e)  Harrison  vs.  Hogg,  2  Ves.  Jr.  323  ;  Boyd  vs.  Hoyt,  5  Paige,  Ch.  R.  65 ; 
Ingersoll  vs.  Kirby,  Walk.  Ch.  6o ;  Ryan  vs.  Trustees  of  Shawneetown,  14 
111.  20  ;  Burnett  vs.  Lester,  53  111.  325  ;  West  vs.  Randall,  2  Mason,  181 ;  see 
Atwill  vs.  Ferrett,  2  Blatchf.  C.  C.  40. 

(/)  Jones  vs.  Garcia  Del  Rio,  1  Turn.  &  Russ.  301  ;  1  Barb.  Ch.  Pr.  40; 
Supervisors  etc.  vs.  State's  Attorney,  31  111.  74 ;  Sheriff  vs.  Oil  Go.  7  Phil. 
(Pa.)  R.  4 ;  Barcy  vs.  Lake,  46  Miss.  109. 

(g)  Kuye  vs.  Moore,  1  Sim.  &  Stu.  61  ;  1  Barb.  Ch.  Pr.  41 ;  Clarkson  vs. 
DePcyster,  3  Paige,  Ch.  R.  320;  Bank  of  Muskingum  vs.  Carpenter,  W Tight, 
729  ;  Shields  vs.  Tliomas,  18  How.  U.  S.  253. 

{h)    Bughee  vs.  Sargeant,  23  Maine,  269. 

[i)    Buckley  vs.  Starr,  2  Day,  552. 

{j )  Coe  vs.  Turner,  5  Conn.  86  ;  Mix  vs.  Hotchkiss,  14  Conn.  32 ;  Ingersoll 
vs.  Kirhy,  Walk.  Ch.  65 ;  Burnett  vs.  Lester,  53  111.  325 ;  Walker  vs.  Taylor, 
42  Ala.  297  ;  Burling  vs.  Hammer,  20  N.  J.  Eq.  220 ;  Supervisors  etc.  vs. 
State's  Attorney,  31  111.  74. 

(k)     Varick  vs.  Smith,  5  Paige,  Ch.  R.  137. 
4 


50  BILLS   IN   CHANCEKY. 

The  Premises,  or  Stating  Part  —  Multifariousness. 

against  several  defendants  is  joined  with  a  claim  in  which  one 
only  of  the  defendants  is  interested,  and  which  is  wholly  dis- 
connected with  the  claim  against  all  the  defendants,  all  or  either 
of  them  ma}^  demur  for  multifariousness.  (I)  A  bill  in  which 
demands  against  the  defendant,  in  liis  private  capacity,  are 
joined  with  demands  against  him  as  executor,  etc.,  will  be  dis- 
missed on  demurrer,  (w)  A  bill  is  not  multifarious  if  it  be  single 
as  to  the  subject  matter  and  object  thereof,  and  the  relief 
sought,  if  all  the  defendants  are  connected,  though  differently, 
with  the  whole  subject  of  dispute  ;(7i)  and  where  a  bill  is 
framed  with  a  two-fold  object,  either  for  a  specific  delivery  of 
the  property,  or  an  enforcement  of  a  supposed  lieu,  it  is  not 
multifarious,  (o) 

It  seems  that  the  objection  of  multifariousness  is  confined  to 
cases  where  the  case  of  each  defendant  is  entirely  distinct  and 
separate  in  its  subject  matter  from  that  of  his  co-defendants, 
for  the  case  of  one  defendant  may  be  so  entire  as  to  be  incapa- 
ble of  prosecution  in  several  suits,  and  some  other  defendant 
may  be  a  necessary  party  to  only  a  portion  of  the  case ;  in 
which  latter  case,  multifariousness  is  not  an  available  objec- 
tion. {])) 

If  the  owner  of  the  equitable  title  to  land,  in  a  bill  to  compel 
a  conveyance  of  the  legal  title  to  him,  should  join  the  owner 
of  adjoining  land  as  a  defendant  to  settle  a  disputed  question 
of  boundary,  the  bill  would  be  multifarious,  {q) 

Where  separate  contracts  are  made  with  the  same  individual, 
with  respect  to  the  same  subject  matter,  they  may  be  combined 
in  one  bill ;  {r)  and  persons  holding  distinct  interests  under  the 

(0     Swift  vs.  Eckford,  6  Paige,  Ch.  R.  23. 

{m)  Davone  vs.  Fanning,  4  Johns.  Ch.  R.  199  ;  Oill  vs.  Glagett,  2  Gill  &  J. 
14;  Bryan  vs.  Blythe,  4  Blackf.  249. 

{n)  Watson  vs.  Cox,  1  Ired.  Ch.  R.  389  ;  Vann  vs.  Harget,  2  Dev.  &  Bat 
Ch.  31 ;  see  Payne  vs.  Hook,  7  Wall.  425. 

(o)  Murphy  vs.  Clark,  1  S.  &  M.  221 ;  Baines  vs.  McQee,  Id.  208 ;  9  Yerger, 
287  ;   Whitney  vs.  Whitney,  5  Dana,  327. 

{p)  Kennedy  vs.  Kennedy,  2  Ala.  571. 

(q)    Hickman  vs.  Cooke,  3  Humph.  640. 

(r)    Lynch  vs.  Johnson,  2  Litt.  98 ;  Hart  vs.  McKeen,  Walk.  Ch.  417. 


BILLS  IN  OHANCEEY.  51 

The  Premiaes,  or  Stating  Part  —  Scandal  and  Impertinence. 

same  title  may  join  in  a  suit  for  investigating  their  equity ;  {s) 
but  several  coni})lainants  clainiing  distinct  rights,  having  no 
community  of  interests,  cannot  join  in  the  same  action ;  (t)  nor 
can  several  injuries  by  separate  pei'sons  be  joined  in  cliancery 
any  more  than  at  law.  (u) 

Several  property  owners  may  join  in  the  same  bill  to  restrain 
the  collection  of  an  illegal  tax  assessed  against  them  severally, 
asking  relief  against  the  same  injury  on  tlie  same  ground,  (v) 

Scandal  and  Impertinence. — In  framing  a  bill,  the  solicitor 
should  see  that  it  does  not  contain  statements  or  charges 
which  are  scandalous  or  impertinent ;  for  if  it  does,  it  may 
be  excepted  to  by  the  defendant,  and  the  court  will  order 
such  parts  to  be  expunged,  with  costs  against  the  party  offend- 
ing, {w) 

Scandal  consists  in  the  allegation  of  anything  which  is 
unbecoming  the  dignity  of  the  court  to  hear,  or  is  contrary 
to  good  manners,  or  which  charges  some  person  with  a  crime 
not  necessary  to  be  shown  in  the  cause,  (x)  To  which  may 
be  added,  that  any  unnecessary  allegation  bearing  cruelly  upon 
the  moral  character  of  an  individual,  is  also  scandalous,  (y) 

When  a  bill  is  not  pertinent,  or  unnecessarily  reflects  upon 
the  opposite  party,  such  portions  of  it  will  be  stricken  out, 
at  the  costs  of  the  solicitor  so  offending.  Neither  suitors  noj 
solicitors  should  be  allowed  to  manifest  their  personal  feel 
ings  upon  the  records  of  the  court,  (s) 

(s)  Tilford  vs.  Henderson,  1  A.  K.  Marsh.  483  ;  Scrimeyer  vs.  Buchannon 
8  A.  K.  Marsh.  219  ;  Bank  of  Muskingum  vs.  Carpenter,  Wright,  729. 

(<)  Barry  vs.  Rogers,  2  Bibb,  314 ;  Armstrong  vs.  Athens  Co.  10  Ohio 
235 ;  Ohio  vs.  Ellis,  10  Oliio,  456. 

{u)  Burnett  vs.  Lester,  53  111.  325  ;  Clamorgan  vs.  Guisse,  1  Mo.  131. 

(®)  Mt.  Carbon  Coal  etc.  Co.  vs.  Blanchard,  54  111.  240  ;  Harward  vs.  The 
St.  Clair  and  Monroe  Levee  and  Drainage  Co.  51  111.  130 ;  see  Cutting  vs. 
Gilbert,  5  Blatchf.  C.  C.  R.  259. 

{w)  1  Dan.  Ch.  Pr.  451-2 ;  1  Barb.  Ch.  Pr.  41 ;  McConnell  vs.  Holohuah. 
11  111.  61. 

(25)    1  Barb.  Ch.  Pr.  41 ;  Prac.  Reg.  388. 

(y)    Coffin  vs.  Cooper,  6  Ves.  514. 

(2)    McConnell  vs.  Holobush,  11  111.  61 ;  1  Dan.  Ch.  Pr.  451. 


62  BILLS   IN    CHANCERY. 

Constituent  Parts  —  Confederating  Part. 

Impertinence  is  the  same  kind  of  fault  in  pleadings  in 
equity  which  in  those  at  common  law  is  denominated  sur- 
plusage. This  at  law,  taken  in  its  largest  sense,  includes  the 
introduction  of  unnecessary  matter  of  whatever  description, 
and  includes  the  admission  of  matter  wholly  foreign,  as  well 
as  of  matter,  which,  though  not  wholly  foreign,  does  not  require 
to  be  stated,  or  which,  if  stated,  should  be  stated  with  con- 
ciseness, ia)  It  is  not  impertinence,  in  a  bill  amended  after 
answer,  to  adopt  the  language  of  the  answer,  and  set  forth 
its  averment  by  way  of  pretense,  with  a  charge  to  meet 
them.  (5)  In  a  bill  to  remove  a  trustee,  it  is  not  scandalous^ 
or  impertinent  to  challenge  every  act  of  the  trustee  as  mis- 
conduct, nor  to  impute  to  him  corrupt  or  improper  motives 
in  the  execution  of  his  trust ;  nor  to  allege  that  his  conduct 
is  the  vindictive  consequence  of  some  act  on  the  part  of  the 
cestui  que  trust,  or  of  some  change  in  his  situation.  But  it 
is  impertinent,  and  may  be  scandalous,  to  state  any  circum- 
stances as  evidence  of  general  malice  or  personal  hostility ; 
because  the  fact  of  malice  or  hostility,  if  established,  affords 
no  necessary  or  legal  inference  that  the  conduct  of  the  trus- 
tee results  from  such  motives,  and  because  such  a  course  tends 
to  render  a  bill  in  equity  an  instrumynt  of  inquisition  into 
the  private  life  of  every  trustee,  (c) 


SECTION  VI. 
rV.     CONFEDERATING    PART. 

The  confederating  part  contains  a  general  allegation  or 
general  charge  of  a  confederacy  between  the  defendants  and 
other  persons  to  injure  or  defraud  the  complainant.  The 
usual  form  of  the  charge  is  that  the  defendants,  combining 
and  confederating  together,  and  w^itli  divers  other  persons, 
aa  yet  to  the  complainant  unknown,  but  whose  names,  when 

(a)  Staph,  on  PI.  422 ;  1  Barb.  Ch.  Pr.  41.  Langdon  vs.  Pickering,  1& 
Maine,  214. 

(6)    Seeley  vs.  Boehm,  2  Mad.  176. 

(c)    Barb.  Ch.  Pr.  41 ;  Earl  of  Partumouth  vs.  Felloios,  5  Mad.  450. 


BILLS   IN   CHANCERY.  53 

Constituent  Parts  —  Charging  Parts. 

discovered,  he  prays  may  be  inserted  in  the  bill,  and  they  be 
made  parties  defendants  thereto,  with  proper  and  apt  words 
to  charge  them  with  the  premises,  in  order  to  injure  and 
oppress  the  plaintiff  in  the  premises,  do  absolutely  refuse, 
etc.,  or  pretend,  etc.  {d)  Though  the  charge  of  confederation 
is  usually  made  in  the  bill,  it  is  treated  as  entirely  nugatory, 
and  need  not  be  denied  or  responded  to  in  the  answer ;  [e)  and 
may  be  omitted  in  the  bill,  or  inserted,  at  the  option  of  the 
€omplainant.  {/)  The  practice  of  inserting  the  charge  arose 
from  the  idea  that  parties  could  not  be  added  to  the  bill,  by 
amendment,  without  it,  but  it  is  entirely  unnecessary  for  that 
purpose.  The  mere  allegation  of  combination  or  confederacy 
of  the  defendants,  simply  as  such,  could  never  alone  have 
been  a  just  foundation  for  the  jurisdiction  of  a  court  of  equity 
in  the  absence  of  all  other  proper  matter  to  sustain  it.  Con- 
federacy or  combination,  as  a  gravamen,  seems  clearly  cogni- 
zable at  law.  ig) 

SECTION  VII. 
V.     CUAKGING    PABT. 

Although  the  charging  part  of  the  bill  is  generally  inserted, 
yet  it  is  not  essential  that  it  should  be.  That  part  of  the 
bill  may  be  omitted.  (A)  The  equitable  ground  of  relief,  on 
the  part  of  the  complainant,  must  appear  in  the  stating  part 
of  the  bill ;  for  if  the  equity  only  appears  in  the  charging 
part,  the  bill  will  be  demurable.  (^)  If  the  complainant  can 
foresee  the  matter  which  the  defendant  will  set  up  to  protect 

{d)  Story's  Eq.  PL  §  29 ;  Barton's  Suit  in  Eq.  33  ;  Coop.  Eq.  PI.  9  ;  Eq. 
Draft.  5-6. 

(e)  Story's  Eq.  PI.  §29  ;  Eq.  Draft.  5,  note  d;  Barton's  Suit  in  Eq.  33  ; 
Coop.  Eq.  PL  10  ;  1  HofiT.  Cli.  Pr.  41 ;  1  Dan.  Ch.  Pr.  375. 

(/)  Eq.  Pr.  U.  S.  S.  C.  1870,  Rule  21;  8  Ves.  404  ;  3  Mad.  11. 

{g)    Barton's  Suit  in  Eq.  33,  note  ;  Story's  Eq.  PL  §  27-29  ;  Mitf.  Eq.  PL  40. 

Qi)  Welf.  Eq.  PL  102;  Parbridge  vs.  Haycraft,  11  Ves.  575;  Story's 
Eq.  PL  §  33 ;  Eq.  Pr.  U.  S.  S.  C.  Rule  21. 

{i)  Flint  vs.  Field,  2  Anst.  543  ;  Farren's  Bill  in  Cli.  27 ;  Oregory  vs. 
Molesworth,  3  Atk.  626. 


54  BILLS   IN  CHANCEKY. 

Constituent  Parts  —  Jurisdictional  Clause. 

himself  against  the  allegations  of  the  bill,  such  matter  may 
be  introduced  by  this  mode  of  charging,  which  affords  an 
opportunity  of  rebutting  its  eltects,  by  charging  facts  of  an 
opposite  tendency.  It  is  also  used  sometimes  for  the  purpose 
of  discovering  the  nature  of  the  defendant's  case ;  or  to 
put  in  issue  some  matter  which  the  complainant  does  not 
desire  to  admit ;  {j)  for  which  purpose  the  charge  of  the 
pretense  of  the  defendant  is  held  to  be  sufficient,  {k)  Thus, 
for  example,  if  a  bill  is  filed  on  any  equitable  ground  by  an 
heir,  who  apprehends  that  his  ancestor  has  made  a  will,  he 
may  state  his  title  as  heir,  and  alleging  the  will  by  way  of 
pretense  of  the  defendant's  claiming  under  it,  may  make  it  a 
part  of  the  case,  without  admitting  it.  (^ 

SECTION  VIII. 
VI.     JTJKISDICTIONAL    CLAUSE. 

This  part  of  the  bill  is  intended  to  give  jurisdiction  of  the 
suit  to  the  court  by  a  general  averment,  that  the  acts  com- 
plained of  are  contrary  to  equity,  and  tend  to  the  injury  of 
the  complainant,  and  that  he  has  no  remedy,  or  not  a  com- 
plete remedy,  without  the  assistance  of  a  court  of  equity,  (m) 
This  clause  in  the  bill,  however,  is  wholly  unnecessary,  and 
the  omission  of  it  does  not  render  the  bill  defective,  {n)  and 
it  may  be  used  or  not,  at  the  discretion  of  the  complainant,  (o) 
The  averment  does  not  confer  jurisdiction,  but  the  facts  stated 
in  the  bill  must,  of  themselves,  make  a  case  within  the  juris- 
diction of  a  court  of  chancery,  [p)  At  best,  therefore,  the 
clause  is  a  mere  superfluity. 

{jf)    Barton's  Suit  in  Eq.  34  ;  Oregory  vs.  Molesworth,  3  Atk.  626. 

{k)    Mitf.  Eq.  PI.  by  Jeremy,  43  ;  Parhridge  vs.  Haycraft,  11  Ves.  574. 

{I)  Story's  Eq.  PL  §  31 ;  Van  Heythuysen's  Eq.  Draft,  p.  5  ;  Barton's  Suit 
in  Eq.  34 ;  Welf.  Eq.  PI.  103. 

(m)  Barton's  Suit  in  Eq.  27,  28  ;  Story's  Eq.  PI.  §10, 34  ;  Coop.  Eq.  PI.  10, 11. 

{n)  Story's  Eq.  PL  §  34 ;  Lord  Red.  44 ;  1  Dan.  Cli.  Pr.  573,  note ;  Bate 
man  vs.  Willoe,  1  Sch.  &  Lef.  204 ;  Welf.  Eq.  PL  104. 

(o)    Eq.  Pr.  U.  S.  S.  C.  1870.  Rule  21 ;  Eq.  Draft.  5,  note  g. 

(p)  Lord  Red.  44 ;  May  vs.  Parker,  12  Pick.  34  ;  Mitf.  Eq.  PL  35 ;  1  Barb. 
Ch.  Pr.  30  ;  Chase  vs.  Palmer,  12  Shep.  341. 


BILLS   IN   CHANCEEY.  55 

Constituent  Parts  —  Introductory  Part. 


SECTION  IX.    * 
VII.     mT|;RROGATING    PART. 

The  interrogating  .part  of  the  bill  contains  a  prayer  that  the 
defendants  may  answer  all  and  singidar  the  matters  contained 
in  the  stating  and  charging  parts  of  the  bill,  not  only  according 
to  their  respective  knowledge  and  remembrance  of  the  facts 
stated,  bnt  also,  according  to  the  best  of  their  several  and 
respective  hearsay,  information  and  belief.  The  bill  usually 
requires  an  answer  under  oath  ;  but  under  the  statute  of  Illinois, 
as  well  as  several  other  states,  the  complainant  may  waive  the 
necessity  of  the  answer  being  made  on  the  oath  of  the  defend- 
ant, in  all  cases  except  where  the  bill  is  filed  for  discovery  only ; 
and,  in  such  cases,  the  answer  may  be  made  without  oath,  and 
shall  have  no  other  or  greater  force,  as  evidence,  than  the  bill. 
The  general  interrogatory  in  a  bill  is  sufficient  to  entitle  a 
party  to  a  full  answer  to  all  the  matters  stated,  {q)  But  this 
fact  has  not,  in  practice,  precluded  the  use  of  special  interroga- 
tories; which  are  sometimes  regarded  as  of  great  importance 
in  enlarging  a  general  charge,  and  extending  it  to  all  the 
minute  and  collateral  circumstances  attending  the  fact. 

The  interrogatories  are  always  to  be  construed  by  the  charg- 
ing part  of  the  bill,  and  must  be  founded  upon  the  statements 
or  charges  in  the  bill,  and  cannot  be  more  extensive  than 
these.  (/')  If  there  is  nothing  in  the  prior  part  of  the  bill  to 
warrant  an  interrogatory,  the  defendant  is  not  bound  to  answer 
it ;  {s)  but  if  he  does  answer  it,  the  matter  is  put  in  issue,  (t) 
The  interrogating  part   of  the  bill   is  not  regarded  as  abso- 

(q)  Jnques  vs.  Methodist  Church,  IJolins.  Ch.  R.  75  :  Story's  Eq.  PI.  §  36, 
38. 

(r)  Mechanics'  Bank  vs.  Levy,  3  Paige,  Ch.  R.  606  ;  Gowles  vs.  Buchanan, 
3  Ired.  Cli.  R.  374;  Muckleston  vs.  Broion,  6  Ves.  63;  Parker  vs.  Carter,  4 
Munf.  273  ;  Story's  Eq.  PI.  ^  35. 

(s)  Eberly  vs.  Oroff,  9  Harris,  256  ;  Wigram  on  Disc.  74  ;  1  Barb.  Ch.  Pr, 
36  ;  Kisor  vs.  Stanscifer,  Wright,  323  ;  Haythovp  vs.  Hook,  1  Gill  and  J.  270;- 
Story's  Eq.  PI.  i^  36. 

(t)  1  Ves.  Sr.  534,  538;  Mitf.  Eq.  PI.  38;  Story's  Eq.  PI.  §  36,  37 ;  1 
Dan.  Ch.  Pr.  432 ;  Eq.  Draft.  5,  note  g. 


56  BILLS   IN   CHANCERY. 

Constituent  Parts  —  Prayer  for  Relief. 

'  lutely  necessary,  though  it  is  generally  used,  (u)  especially 
where  the  answer  of  the  defendant  is  required  to  be  under 
oath.  Where  tlie  complainant  waives  the  necessity  of  the 
answer  being  made  on  the  oath  of  the  defendant,'  no  good 
reason  for  interrogatories  exists,  and  they  may  well  be  dispensed 
with. 

The  sworn  answer  of  a  defendant  to  a  bill,  when  the  oath  is 
not  waived,  can  only  be  overcome  by  the  evidence  of  two  wit- 
nesses, or  its  equivalent,  (v)  But  the  evidence  of  two  witnesses 
is  sufficient  to  overcome  the  statement  in  a  sworn  answer,  (w) 
If  an  answer  is  not  sworn  to  it  is  not  evidence  in  the  cause  for 
any  purpose ;  it  performs  the  office  of  a  plea  only,  (a?)  "When 
the  oath  to  an  answer  is  waived  by  tlie  bill,  an  answer  on  oath  is 
no  more  than  a  pleading,  and  does  not  require  the  testimony  of 
two  witnesses  to  overcome  it ;  and  it  is  an  improper  practice 
for  a  solicitor  to  put  in  an  answer  for  his  client  under  oath, 
where  the  oatli  is  waived,  {y)  And  the  effect  of  requiring  an 
answer  under  oath  cannot  be  avoided,  after  answer  has  been 
filed,  by  filing  an  amended  bill  waiving  the  oath.  The  answer 
under  oath  to  the  original  bill,  would  still  be  evidence  on  the 
hearing  of  the  case,  so  far  as  it  is  responsive  to  the  bill,  (s) 


SECTION  X. 
VIII.     PRAYER    FOR    RELIEF. 

The  bill  must  also  contain  a  prayer  for  relief.  This  must 
depend  uj)on  the  facts  of  each  case,  and  the  nature  of  the 
relief  sought,  and  should  be  framed  with  great  care.    Unless 

(m)    Story's  Eq.  PI.  §  38. 

(«)  Barton  vs.  Moss,  32  111.  50 ;  Duncan  vs.  Wilson,  Id.  517  ;  Wightman 
vs.  Hart,  37  111.  133  ;  Maple  vs.  Seott,4.\  111.  50 ;  Wildey  vs.  Webster,  42  111. 
108;  Phelps  vs.  White,  IS  lU.  41;  Eussell  vs.  Russell,  54  111.  250;  Panton 
\s.  Teft,  22  111.  366. 

(w)   Martin  vs.  Eversal,  36  111.  222. 

(x)  Willis  vs.  Henderson,  4  Scam.  13 ;  Chambers  vs.  Howe,  36  111.  171 ; 
Hopkins  vs.  Granger,  52  111.  504. 

iy)    Willenborg  vs.  MurpJi//.  36  111.  344  ;   Wallicork  vs.  Derbi/,  40  111.  527. 

(2)     Wylder  vs.  Crane,  53  111.  490. 


BILLS  m  CHANCERY.  57 


Constituent  Parts  —  Prayer  for  Relief. 

there  is  a  prayer,  there  can  l.)e  no  relief  for  the  complainant.    ' 
(a)  And    if,  for  any  reason  founded  on  the  substance  of  the 
case,  as  stated  in  the  bill,  the  complainant  is  not  entitled  to 
the  relief  he  prays,  either  in  whole  or  in  part,  the  defendant 
may  demur,  {h) 

The  prayer  for  relief  is  divided  into  two  kinds :  Prayer 
for  specific  relief,  and  prayer  for  general  relief.  In  most 
cases,  a  prayer  for  general  relief  is  sufficient  to  enable  the 
complainant  to  obtain  such  a  decree  as  his  case  entitles  him 
to ;  but  it  is  the  usual  and  better  practice  for  the  complain- 
ant to  pray,  first  for  such  specific  relief  as  he  thinks  he  ought 
to  have,  and  then  for  general  relief,  (c)  But  under  the  prayer 
for  general  relief,  such  relief  only  can  be  granted  as  the  case 
stated  in  the  bill,  and  sustained  by  the  proof,  will  justify,  (d) 
When  there  is  no  obstruction  to  the  particular  relief  prayed 
for,  the  complainant  cannot  abandon  it,  and  ask  a  dilferent 
decree  under   the   prayer  for  dift'erent  relief,  (e) 

It  is  never  safe  to  omit  the  prayer  for  general  relief,  for  il 
tlie  complainant  should  mistake  the  relief  to  which  he  is  enti- 
tled, in  his  special  prayer,  the  court  may,  under  the  prayer  for 
general  relief,  grant  him  such  relief  as  he  ought  to '  have,  con- 
sistent with  the  case  made  in  the  bill.  (/")  But  if  there  is  no 

(a)    Driver  vs.  Fortner,  5  Porter,  9. 

(6)  Mitf.  Eq.  PI.  133  ;  1  Barb.  Cla.  Pr.  40  ;  Story's  Eq.  PI.  §  40 ;  see  Gould 
•vs.  Ryon,  14  111.  53  ;  Kuckenbeirer  vs.  Beckert,  41  111.  172. 

(c)  Barton's  Suit  in  Eq.  46  ;  Story's  Eq.  PI.  ^  40-43  ;  Hunter's  Suit  in  Eq. 
16, 18  ;  Thomason  vs.  Smithsoii,  7  Porter,  144 ;  McNah  vs.  Hcald,  41  111.  326 ; 
Baper  vs.  Saunders,  21  Gratt.  Va.  R.  60. 

(d)  Hohson,  vs.  McArthur,  16  Pet.  183 ;  Gibson  vs.  McCormiek,  10  Gill  & 
J.  65  ;  Lingan  vs.  Henderson,  1  Bland,  236  ;  James  vs.  Bird,  8  Leigh,  510  ; 
Danforth  vs.  Smith,  23  Vt.  247;  Broion  vs.  McDonald,  1  Hill,  Cli.  R.  297; 
Jones  vs.  Bush,  A:  Harring.  1 ;  Kelley  vs.  Payne,  18  A1&.  371  ;  Stone  \s.  Ander- 
son, 6  Foster,  N.  H.  500;  Gunndl  vs.  Coch't-ill,  84  111.  319. 

(<?)  Allen  vs.  Goffman.  1  Bibb,  4G9 ;  Hilleary  vs.  Hurdle,  %  Gill,  105; 
Kernegay  vs.  Carroway,  2  Dev.  Ch.  403 ;  Pleasants  vs.  Glasscock,  1  S.  &  M. 
Ch.  17. 

(/)  Wilkinson  vs.  Bcal,  4  Mad.  408 ;  Beaumont  vs.  Boulbree,  5  Ves.  495 ; 
Hiern  vs.  Mill,  13  Ves.  119,  120;  English  vs.  Foxall,  2  Pet.  595;  Hobson 
vs.  McArthur,  10  Pet.  19.j ;  Danforth  vs.  Smith,  23  Vt.  247 ;  Hillenry  vg. 
Hurdle, Q  Gill,  105  :  Scudder  vs.  Young,  25  Maine,  153  ;  Sheppard  vs.  Starke, 
3  Munf.  2J;  Stanley  vs.  Valentine,  79  111.  544;  Hopkins  vs.  Siiedaker,  71  III. 
449. 


58  BILLS    IN    CIIAXCERY. 

Constituent  Parts  —  Prayer  of  Process. 

prayer  for  general  relief,  then  if  the  complainant  should  mistake 
the  relief  to  which  he  is  entitled,  no  other  relief  can  be  granted, 
and  his  suit  must  fail,  at  least,  unless  an  amendment  of  the 
prayer  is  allowed,  {g) 

Under  the  general  prayer  for  relief,  the  court  will  only 
grant  such  relief  as  the  statements  of  the  bill  will  justify, 
and  will  not  ordinarily  allow  a  bill  framed  for  one  pur- 
pose to  answer  for  another;  especially  if  the  defendant  may 
be  surprised  or  prejudiced  by  it.  If,  therefore,  the  complain- 
ant has  doubts  as  to  the  relief  he  ought  to  have,  he  should 
frame  his  bill  with  a  double  aspect,  so  that  if  the  court 
should  decide  against  him  in  one  view  of  the  case,  it  may 
yet  afford   him.  assistance  in  another.  (A) 


SECTION  XI. 
IX.     PKAYEK    OF    PKOCESS. 

* 

This  part  of  the  bill  prays  process  to  compel  the  defendant  to 
appear  and  answer  the  bill,  and  abide  the  determination  of  the 
court  on  the  subject.  Care  must  be  taken  to  insert  the  names 
of  all  persons  who  are  intended  to  be  made  parties ;  for  it  is  a 
general  rule  that  none  are  parties,  although  named  in  the  bill, 
against  whom  process  is  not  prayed,  {t)  The  ordinary  process 
prayed  is  a  writ  of  subpoena,  or  summons,  as  provided  in 
Illinois,  which  requires  the  defendant  to  appear  and  answer  the 
Dill  on  a  certain  day,  named  in  the  writ.  If  the  complainant 
wishes  an  injunction  against  the  defendant,  he  must  not  only 
pray  for  it  in  the  prayer  for  relief,  but  also,  in  the  prayer  for 

(g)  Story.'s  Eq.  PI.  §41  ;  Coop.  Eq.  PI.  14;  Cook  vs.  Marty n,  2  Atk.  2; 
Polk  vs.  Clinton,  12  Ves.  62-65  ;  Thomason  vs.  SmitJison,  7  Porter,  144. 

(A)  Story's  Eq.  PL  §  42  ;  Dan.  Ch.  Pr.  434,  441 ;  1  Hoff.  Ch.  Pr.  49  ;  Mitf. 
Eq.  PI.  38  ;  Coop.  Eq.  PL  14 ;  Jones  vs.  Parishes  etc.  3  Swanst.  208  ;  Legal  va. 
Miller,  2  Ves.  299 ;  Walker  vs.  Devcreaux,  4  Paige,  Ch.  229  ;  Scudder  vs. 
Young,  25  Maine,  153 ;  Colton  vs.  Ross,  2  Paige,  Ch.  R.  396,  and  the  cases 
there  cited  as  to  proper  forms  of  ])rayer  for  relief. 

(j)  Barb.  Ch.  Pr.  37  ;  Story's  Eq.  PL  §  44 ;  Coop.  Eq.  PL  16  ;  Fawkea  vs. 
Pratt,  1  P.  Wins.  503;  Windsor  vs.  Windsor,  2  Dick.  707;  Elmendorf  yq 
Delaney,  Hopk.  555. 


BILLS   m   CHANCERY.  59 

Frame  of  Bill  —  Signing  of  Bills. 

process,  (f)  A  prayer  for  general  relief  will  not  be  sufficient 
to  authorize  it.  (Z:)  If  only  a  temporary  injunction  is  wanted, 
the  bill  must  also  contain  a  formal  prayer  for  it.  {I) 

SECTION  XII. 
FKAME    OF    A    BILL. 

We  have  now  given  the  nine  formal  parts  of  an  original  bill 
praying  relief,  as  it  is  generally  framed ;  upon  which  Lord 
Redesdale  has  made  the  following  remarks :  "  Some  of  them 
are  not  essential ;  and,  particularly,  it  is  in  the  discretion  of 
the  person,  who  prepares  the  bill,  to  allege  any  pretense  of  the 
defendant  in  opposition  to  the  plaintiff's  claims,  or  to  interro- 
gate the  defendant  specially.  The  indiscriminate  use  of  these 
parts  of  a  bill,  in  all  cases,  has  given  rise  to  a  common  reproach 
to  practisers  in  this  line,  that  every  bill  contains  the  same  story, 
three  times  told.  In  the  hurry  of  business,  it  may  be  difficult 
to  avoid  giving  ground  for  the  reproacli.  But  in  a  bill,  pre- 
pared with  attention,  the  parts  will  be  found  to  be  perfectly 
distinct,  and  to  have  their  separate  and  necessary  operation."  {?n) 

SECTION  XIII. 
SIGNING    OF    BILLS. 

Except  in  cases  where  an  injunction  is  asked  for,  or  a  dis- 
covery, or  an  answer  On  oath  is  required  from  the  defendant, 
bills  are  usually  signed  by  the  solicitor  alone,  and  not  by  the 
party,  [n)  If  the  complainant  sues  in  person,  however,  it  must 
be  signed  by  him.  And  in  that  case,  it  seems  that  it  need  not 
be  signed  by  counsel,  (o)  The  general  rule,  however,  is  that 
the  bill  must  be  signed  by  counsel.     And  if  it  is  not  so  signed, 

(jf)    1  Barb.  Cli.  Pr.  37 ;   Wood  vs.  Beadel,  3  Sim.  273. 

(k)    Barb.  Cli.  Pr.  37  ;   Wright  vs.  Atkyns,  1  Ves.  &  B.  314. 

(0     Walker  vs.  Devereaux,  4  Paige,  Ch.  R.  229. 

(to)  1  Mitf.  Eq.  PL  by  Jeremy,  47 ;  Story's  Eq.  PI.  i-  46. 

(71)   Hutch  vs.  Eustaiihiece,  1  Clarke,  63  ;  1  Barb.  Ch.  Pr.  43. 

(o)    1  Hofif.  Cli.  Pr.  97 ;  1  Barb.  Ch.  Pr.  44 


60  BILLS   IN   CHANCEKY. 

Signing  of  Bills  —  Swearing  to  Bill. 

it  will  be,  on  motion,  stricken  from  the  files ;  or  it  may  be 
demurred  to  for  that  cause,  {j))  Signing  by  counsel,  on  the  back, 
is  held  sufficient,  {g) 

The  2-ith  rule  of  practice  for  the  courts  of  equity  of  the 
United  States,  provides,  that  "  every  bill  shall  contain  the  sig- 
nature of  counsel  annexed  to  it,  which  shall  be  considered  as  an 
affirmation  on  his  part,  that  upon  the  instructions  given  to  him, 
and  the  case  laid  before  him,  there  is  good  ground  for  the  suit, 
in  the  manner  in  which  it  is  framed." 

The  great  object  of  this  rule  is  to  secure  regularity,  relevancy 
and  decency  in  the  allegations  of  the  bill,  and  the  responsibility 
and  guaranty  of  counsel,  that  he  regards  the  bill  as  being  pro- 
perly filed.  Hence  it  is  that  counsel  are  held  responsible  for 
the  contents  of  the  bill ;  and,  if  it  contains  matter  which  is 
irrelevant,  impertinent  or  scandalous,  such  matter  may  be  ex- 
punged, and  the  counsel  may  be  ordered  to  pay  costs  to  the 
party  aggrieved,  (r) 

SECTION  XIV. 
SWEARING    TO    THE    BILL. 

There  is  no  rule  in  Michigan  {s)  or  Illinois,  requiring  bills 
in  cases  of  general  equity  cognizance  to  be  sworn  to.  If  a 
bill  seeks  a  discovery  of  deeds  or  writings,  and  prays  relief, 
founded  thereon,  and  the  relief  so  prayed  be  such  as  might 
be  obtained  at  law,  if  the  deeds  or  writings  were  in  the  cus- 
tody of  the  complainant,  he  must  annex  to  his  bill  an  affidavit 
that  they  are  not  in  his  custody  or  power,  and  that  he  knows 
not  where  they  are,  unless  they  are  in  the  hands  of  the  defend- 

{p)  Dillon  vs.  FrancAs,  Dick.  68;  French  vs.  Dear,  5  Ves.  547;  Kirkley 
vs.  Burton,  5  Mad.  378;  Cary  vs.  Hatch,  2  Edw.  Ch.  R.  190;  Patridge  vs. 
Jackson,  2  Edw.  Ch.  R.  520  ;  Story's  Eq.  PI.  §  47 ;  Boach  vs.  Rulings,  5 
Cranch,  C.  C.  637. 

{q)    Dwlght  vs.  Humphreys,  3  McLean,  104. 

(r)  Story's  Eq.  PL  t^  47  ;  Coop.  Eq.  PL  18,  19  ;  Gilb.  For.  Rom.  210,  211 ; 
Emerson  vs.  Dallison,  1  Ch.  194;  McConnel  vs.  Uollohush,  11  111.  61. 

(«)    Moore  vs.  Cheeseman,  23  Mich.  332. 


BILLS   IN   CHANCERY.  61 

Swearing  to  Bill  —  Parties. 

ant,  otherwise  the  bill  will  be  deirmrable.  {i)  But  if  the  relief 
sought  extends  merely  to  the  discovery  of  the  instrument, 
or  is  otherwise  such  as  can  only  be  given  in  a  court  of  equity, 
such  an  affidavit  is  not  necessary,  [u) 

Where  the  bill  seeks  an  injunction  it  should  be  verified  by 
affidavit,  {v)  It  will  not  suffice  to  swear  to  the  material  facts 
upon  information  and  belief.  They  should  be  positively  sworn 
to.  {w)  And  wdiere,  upon  an  ex  parte  application  for  an  interlo- 
cutory injunction,  the  complainant  states  the  facts  on  which  his 
equities  rest  upon  information  and  belief,  he  should  present  affi- 
davits of  their  truth  from  the  persons  of  whom  his  knowledge 
is  obtained,  and  who  can  swear  positively  to  the  facts,  {x)  An 
exception,  however,  is  recognized  in  the  case  of  an  injunction 
in  aid  of  a  creditor's  bill  against  the  judgment  debtor  alone,  no 
third  parties  being  joined  as  defendants,  and  in  such  case  it 
is  sufficient  if  the  complainant  swears  upon  information  and 
belief  as  to  the  recovery  of  the  judgment  and  return  of  execu- 
tion nulla  ho7ia.  (y) 

SECTION  XV. 

PARTIES    TO   BILLS. 

It  cannot  be  expected  that  in  a  condensed  work  of  this 
kind,  the  important  consideration  as  to  who  are  proper  and 
necessary  parties  to  a  bill  can  meet  with  an  extended  exam- 

(t)  Story's  Eq.  PI.  §  477,478,  288,  311 ;  Coop.  Eq.  PI.  125  ;  Looker  vs. 
Roll,  3  Ves.  4;  Byves  vs.  Ryves,  3  Ves.  343;  and  see  Russell  vs.  Clarke  etc.  7 
Crancb,  69,  89  ;  1  Story's  Eq.  Jur.  §  71 ;  Rootham  vs.  Dawson,  3  Anst.  859; 
WhitcJiurch  vs.  Golding,  2  P.  Wms.  541  ;  Humphreys  vs.  Sumphreys,  3  P. 
Wms.  395 ;  Hook  vs.  Dorman,  1  Sim.  &  Stu.  227. 

{u)  Lord  Red.  Tr.  PI.  112,  113;  1  Mad.  Ch.  Pr.  26,  7,  m ;  -Whitchurch 
vs.  Golding,  2  P.  Wms.  541. 

(«)    High  on  Inj.  §  984-987. 

(w)  Campbell  vs.  Morrison,  7  Paige,  Ch.  R.  157 ;  RebouVs  Heirs  vs.  Beh- 
reus,  5  La.  An.  79 ;  Cutlett  vs.  McDonald,  13  La.  An.  44. 

(cc)  High  on  Inj.  §984;  Campbell  vs.  Morrison,  7  Paige,  Ch.  R.  157; 
Bank  of  Orleans  vs.  Skinner,  9  Paige,  Ch.  R.  305  ;  Toungblood  vs.  Schamp, 
2  McCart.  42. 

(r/)  Hamersley  vs.  Wickoff,  8  Paige,  Ch.  R,  72 ;  Sizer  vs.  Sizer,  9  Paige,. 
Ch.  R.  605  ;  High  on  Inj.  §  984-986. 


62  BILLS   IN   CHANCERY. 

Who  should  be  made  Parties. 

ination.  This  is  a  subject  of  great  practical  importance,  and 
of  no  inconsiderable  difficult}^  in  u  great  variety  of  cases. 
The  reader  is  referred  to  Chapter  lY  of  Story's  Equity 
Pleadings;  1  Daniels'  Chancery  Practice,  Chapter  Y;  and 
Barbour  on  Parties ;  where  these  authors  have  devoted  a  good 
deal  of  attention  and  a  large  space  to  the  subject.  A  brief 
summary  of  the  rules  in  relation  to  proper  parties  to  pro- 
ceedings in  chancery  is,  however,  indispensable,  and  will  be 
given. 

Who  should  he  made  parties. — In  chancery,  all  the  parties 
in  interest,  and  whose  rights  may  be  effected,  ought  to  be 
made  parties  to  the  bill ;  and  if  the  court  is  called  upon, 
in  the  exercise  of  its  discretion,  to  dispense  with  the  proper 
parties,  some  reason  therefor  ought  to  be  disclosed  in  the 
bill,  {z)  Courts  will  take  notice  of  the  omission  of  proper 
defendants  in  the  bill,  though  no  demurrer  be  interposed, 
when  it  is  manifest  that  the  decree  will  have  the  effect  of 
depriving  them  of  their  legal  rights,  {a)  If  the  answer  to 
a  bill  discloses  an  interest  in  a  third  person  in  the  subject 
matter  of  the  suit,  he  should  be  made  a  defendant  in  the 
bill,  that  he  may  have  an  opportunity  of  defending  his  inter- 
ests, which  might  otherwise  be  effected  without  a  hearing,  (b) 
There  are  some  exceptions  to  the  general  rule  that  all  persons 
interested  in  the  subject  matter  in  the  suit  should  be  made 
parties;    but   one   general    rule,   however,   governs  all   these 

(2)  Oilham  vs.  Cairns,  Breese,  164 ;  Scott  vs.  Moore,  3  Scam.  306 ;  Martin 
vs.  Dryden,  1  Gilm.  187  ;  Spear  vs.  Campbell,  4  Scam.  434;  Whitney  vs.  Mayo, 
15  111.  251 ;  Prentice  vs.  Kimball,  19  111.  320;  Eoare  vs.  Harris,  11  111.  24 
Smith  vs.  Rotan,  44  111.  506 ;  Hassett  vs.  Ridgeley,  49  111.  197 ;  Harris  vs. 
Carter,  3  Stffwart,  233 ;  Mechanics'  Bank  vs.  Seton,  1  Pet.  299  ;  Story  vs. 
Livingston,  13  Pet.  359 ;  Hussey  vs.  .Dole,  24  Maine,  20 ;  McConnell  vs. 
McConnell,  11  Vt.  290;  Crocker  vs.  Higgins,  7  Conn.  342;  New  London 
Bank  vs.  Lee,  11  Conn.  112;  Haioley  vs.  Cramer,  4  Conn.  717;  Oliver  vs. 
Palmer,  11  Gill  &  J.  426 ;  Park  vs  Balleniine,  6  Blackf.  223 ;  Wescott  vs. 
Minn.  Mining  Co.  23  Mich.  145 ;  Strong  vs.  Downing,  34  Ind.  300 ;  Hicken- 
botham  vs.  Blackledge,  54  111.  316. 

(a)    Uerrington  vs.  Hubbard,  1  Scam.  569 ;  Bohan  vs.  Oaloway,  13  III. 
75 ;  Prentice  vs.  Kimball,  19  111.  320. 

(6)    Herrington  vs.  Hubbard,  1  Scam.  569 


BILLS   m  CHANCEKY.  63 

Parties  —  How  Described  —  Persons  under  Disability. 

exceptions,  and  that  is,  "  that  as  the  object  of  the  rule  is  to 
accomplish  the  purpose  of  justice  between  all  of  the  parties, 
and  as  it  is  a  rule  founded  in  some  sort  upon  public  con- 
venience and  policy,  rather  than  upon  positive  principles  of 
municipal  or  general  jurisprudence,  courts  of  equity  will 
not  suffer  it  to  be  applied  so  as  to  defeat  the  very  purpose 
of  justice,  if  they  can  dispose  of  the  merits  of  the  case  before 
them  without  prejudice  to  the  rights  or  interests  of  other 
persons  who  are  not  parties;  or  if  the  circumstances  of  the 
case  render  the  application  of  the  rule  impracticable,  and  if  the 
persons  thus  interested  are«unknown  to  the  complainant,  or  are 
exceedingly  numerous,  they  need  not  be  made  parties."  (c) 

A  person  interested  in  the  subject  matter  of  a  suit  in  equity, 
refusing  to  join  with  the  complainant,  may  be  made  a  defend- 
ant, though  his  interest  is  with  the  complainant,  {d)  And 
if  it  appear  to  the  court  that  a  person  who  may  be  interested 
disclaims  all  interest  in  the  controversy,  he  need  not  be 
made  a  party,  {e) 

How  described. —  Parties  to  suits  in  chancery  should  be 
described  by  their  proper  names,  if  known ;  if  their  names 
are  unknown,  they  must  be  made  parties  in  the  manner  pre- 
scribed by  statute.  {/)  Parties  may  be  made  to  a  bill  under 
an  averment  that  they  have,  or  pretend  to  have,  title  to  land; 
and  if  the  charge  in  the  bill  is  untrue,  by  disclaiming,  they 
may  obtain  costs.  Such  parties,  if  there  is  no  equitable 
ground  of  relief  shown  against  them,  should  demur  separately, 
not  join  in  a  general  demurrer,  {g) 

Persons  urider  disahility. — Suits  in  chancery  may  be  com- 
menced and  prosecuted  by  infants,  either  by  guardian  or  next 

(c)  Willis  vs.  Henderson,  4  Scam.  13;  Webster  vs.  French,  11  111.  254; 
West  vs.  Randall,  2  Masou,  181 ;  Whitney  vs.  Mayo,  Ir,  111.  252  ;  Robinson  vs. 
Smith,  3  Paige,  Ch.  R.  222 ;  Smith  vs.  Rotan,  44  111.  506. 

{d)  Smith  vs.  Sacket,  5  Gilm.  534 ;  Whitney  vs.  Mayo,  15  111.  252 ;  Con- 
tee  vs.  Datcson,  2  Bland,  264 ;  Pogson  vs.  Owen,  3  Desau.  31 ;  Cook  vs.  Hod- 
ley,  Cooke,  465 ;  Morse  vs.  Hovey,  9  Paige,  Ch.  R.  197. 

(e)    Johnson  vs.  Rankin,  3  Bibb,  86. 

(/)  Kirkham  vs.  Justice,  17  111.  107. 

{g)    Finch  vs.  Martin,  19  111.  105. 


64  BILLS   IN   CHANCERY. 

Parties  —  Interest  of  Parties — Joinder  of  Parties. 

friend,  and  by  conservators  on  behalf  of  the  persons  they 
represent.  (A)  The  suit  must  be  in  the  name  of  the  minor 
by  his  next  friend  or  guardian ;  {i)  and  an  order  of  court 
appointing  a  next  friend  is  unnecessary,  (j)  The  next  friend 
may  be  selected  after  the  suit  is  commenced,  (k) 

Interest  of  ^parties. — The  bill  must  show  that  the  com- 
plainant has  an  interest  in  the  subject  matter  in  the  suit ;  (Z) 
a  mere  contingent,  or  possible  interest,  or  probability  of  future 
title,  is  insufficient,  {m)  It  must  also  be  shown  that  the  de- 
fendant has  an  interest,  and  is  liable  to  answer  to  the  com- 
plainant therefor,  (ri)  Parties  having  conflicting  interests  in 
the  subject  of  litigation  should  not  be  joined  as  complainants 
in  the  suit,  {p) 

The  statement  showing  the  rights  of  the  complainant,  by 
whom  and  in  what  manner  he  is  injured,  or  in  what  he  wants 
the  assistance  of  the  court,  and  a  prayer  for  relief  suitable  to 
his  case,  and  for  that  purpose  that  the  process  of  the  court  may 
issue  to  bring  the  defendants  before  it,  form  the  substance  and 
essence  of  every  bill ;  and  must  not,  by  any  means,  be 
omitted,  (j?) 

Joinder  of  parties. — "Where  a  tax  is  sought  to  be  levied 
without  authority,  several  property  owners,  having  a  common 
interest  in  the  subject,  and  asking  relief  against   the   same 

ih)    Rev.  Stat.  (1874)  198;  Rev.  Stat.  (1877)  184. 

(i)  Hoare  vs.  Harris,  11  111.  24;  Holmes  vs.  Field,  11  111.  431;  Stewart 
vs.  Howe,  17  111.  71. 

(J)    French  vs  GreatJi,  Breese,  (Beeclier's  ed.)  111.  R.  31. 

{k)    Stamps  vs.  Kelley,  23  111.  140. 

Q)  Mitf.  Eq.  PI.  156-7  ;  Smith  v.  Holleribeck,  46  III.  252  ;  Kerr  vs.  Watts, 
6  Wheat.  550;  Mansfield  vs.  Hoagland,  46  111.  359;  see  Smith  vs.  Hollen- 
beck,  51  111.  223. 

(to)  Reid  vs.  Vandcrheyden,  5  Conn.  719  ;  Austin  vs.  Richardson,  1  Gratt. 
810 ;  Reeves  vs.  Adams,  2  Dev.  Cli.  192 ;  Barbour  vs.  Whitlock,4:  Monr.  180; 
Mitf.  Eq.  PI.  127 ;  1  Barb.  Cli.  Pr.  39. 

{n)   Att'y  Gen.  vs.  Whorwood,  1  Ves.  Sr.  534. 

((?)    Grant  vs.  Van  Schoonhoven,  9  Paige,  Ch.  R.  255. 

(jj)    1  Barb.  Ch.  i'r.  39;  1  Dan.  412;  see  Elder  vs.  Jones,  85  111.  384. 


BILLS   IN   CHANCEEY.  65 

Parties  —  Want  of  Proper  Parties  —  Misjoinder,  etc. 


injury,  on  the  same  ground,  may  join  in  a  bill  to  restrain  its 
collection,  (q) 

Want  of  projper  lyartiefi^  misjoinder^  etc. — Where  the  want 
of  proper  parties,  or  a  misjoinder,  appears  upon  the  face  of 
the  bill,  advantage  of  it  may  be  taken  by  demurrer  or  motion 
to  dismiss ;  where  the  want  of  parties  does  not  so  appear, 
a  plea  or  answer  setting  up  the  fact  is  proper,  (r)  The  want 
of  necessary  parties  is  not,  however,  a  ground  for  dismissal  in 
the  first  instance ;  but  if  the  complainant  neglects  or  refuses 
to  make  the  necessary  parties,  after  objection  made,  the  bill  will 
be  dismissed,  (.9)  without  prejudice,  {f)  If  the  objection  is  not 
taken  until  the  hearing,  the  court  may  order  the  case  to  stand 
over,  on  terms,  with  liberty  to  the  complainant  to  amend,  by 
adding  such  new  parties  as  may  seem  to  be  necessary ;  ((ul)  but 
it  cannot  be  urged  at  the  hearing,  unless  it  is  manifest  that 
a  decree  cannot  be  made  without  bringing  other  parties  before 
the  court,  {v)  If  neither  party  raises  the  objection,  it  is  com- 
petent for  the  court  to  go  on  and  settle  the  rights  of  the 
parties  before  it,  without  prejudice  to  those  who  are  not 
parties,  {w) 

(g)  Harward  vs.  St.  Clair  Drain  Co.  51  111.  IBO;  Mt.  Carbon  C.  &  R.  Co. 
vs.  Blanchard .  54  111.  240;  Comoell  vs.  Watkins,  71  111.  488. 

(r)  Prentice  vs.  Kimball,  19  111.  320 ;  Spear  vs.  Campbell,  4  Scam.  424 ; 
Scott  vs.  Bennett,  1  Gilm.  646  ;  Story  vs.  Livingston,  13  Pet.  359  ;  Marston  vs. 
Humphreys,  24  Maine,  513 ;  De  la  Vergne  vs.  Everston,  1  Paige,  Ch.  R.  181 ; 
Chipman  vs.  Thompson,  Walker,  Ch.  R.  405 ;  but  see  Bugbee  vs.  Sargent, 
23  Maine,  269. 

(s)  Singleton  vs.  Oale,  8  Porter,  270 ;  Enapp  vs.  Marshall,  26  111.  63 ;. 
Thomas  vs.  Adams,  30  111.  37. 

(t)  Mims  vs.  Mims,  3  J.  J.  Marsh.  103  ;  Rowland  vs.  Gorman,  1  J.  J. 
Marsh.  76  ;  Barry  vs.  Rogers,  2  Bibb,  304  ;  Wallace  vs.  Hawley,  4  J.  J.  Marsh. 
622. 

(u)  Fetch  vs.  Hooper,  20  Maine,  159  ;  Nash  vs.  Smith,  6  Conn.  421 ;  Miller 
vs.  McCan,  7  Paige,  Ch.  R.  451 ;  McLaughlin  vs.  Van  Keuren,  21  N.  J.  Eq. 
R.  379. 

(«)  Cannon  vs.  Norton,  14  Vt.  178 ;  see  Woods  vs.  Scott,  Id.  518 ;  La 
Orange  &c.  R.  R.  Co.  vs.  Rainey,  7  Colw.  Tenn.  420 ;  De  la  Vergne  v& 
Everton,  1  Paige,  Ch.  R.  181. 

(w)  Lorillard  vs.  Coster,  5  Paige,  Ch.  R.  172. 
5 


66  BILLS   IN   CHAJSrCERY. 

Ancient  Bills  —  Form  of  Ancient  Bill. 


SECTION  XVI. 
ANCIENT    BILLS. 

It  may  be  prolitable  here  to  give  the  form  of  an  ancient 
bill,  taken  from  the  proceedings  of  the  Record  Commission. 
Barton,  in  his  history  of  a  suit  in  equity,  (a?)  gives  the  form ; 
and  speaking  of  it,  says,  it  was  filed  in  the  reign  of  Henry 
Y,  to  compel  a  defendant  to  surrender  a  messuage  which 
was  the  inheritance  of  the  plaintifi",  Katharine.  It  will  be 
perceived  in  how  small  a  compass  the  whole  is  contained, 
and   yet  how  completely  it  takes  in  the  equity  of  the  case. 

JVo.  3.   Form,  of  an  Ancient  Bill. 

To  the  Reverend  Father  in  God,  the  Bishop  of  Winchester, 

Chancellor  of  England : 

Beseecheth  humbly  your  poor  orator,  John  Bell,  of  Calls, 
soldier,  and  Katharine,  his  wife,  that  whereas  William  Atte 
Wode,  otherwise  called  William  Atte  Downe,  of  Rochester, 
father  of  said  Katharine,  since  dead,  heretofore  Avas  seised  in 
his  demesne  as  of  fee  of  one  messuage  with  the  appurtenances 
in  Rochester,  situated  in  the  churchyard  there  —  the  which 
William,  in  the  feast  of  St.  Michael,  in  the  twenty-second  year 
of  the  reign  of  King  Richard  II,  since  the  conquest,  let  to 
farm  to  one  Simon  Stelhard,  of  Gillingham,  the  same  messuage 
with  the  appurtenances,  for  term  of  seven  years  then  next 
ensuing,  for  a  certain  sum  to  him  annually  to  be  paid;  the 
which  Simon,  within  the  first  two  years,  was  ousted  by  the 
executors  of  the  said  William,  because  he  would  not  attorn 
to  them  in  payment  of  tlie  rent  of  the  said  messuage  —  the 
which  messuage  was  since  then  several  times'  alienated  to 
divers  persons,  and  now  so  it  is,  very  gracious  Lord,  that 
one  Piers  Savage,  now  occupier  of  the  same  messuage,  for 
which  he  hath  not  paid  more  than  mark,  hath  oftentimes 
been   required    to  deliver   the  same  to    the   said   John   and 

(x)  Barton's  Suit  in  Eq.  39,  note  (1). 


BILLS  IN   CHANCERY.  67 

Ancient  Bills. 

Katharine,  as  the  heritage  of  tlie  same  Katharine ;  and  he 
hath  not  delivered  the  same,  nor '_yet  will,  but  detains  it  in 
destruction  of  their  poor  estate  and  perpetual  disherison 
of  the  same  Katharine,  if  they  should  not  obtain  a  remedy 
by  your  gracious  aid  in  this  behalf;  and  the  which  John  and 
Katharine  are  so  poor,  and  the  said  John  so  ill,  that  they 
cannot  pursue  the  common  law.  Please  your  very  gracious 
Lordship  to  consider  the  premises,  and  thereupon  to  grant 
a  writ  to  the  said  Piers  to  appear  before  you  at  a  certain 
day  upon  a  certain  j)ain,  by  you  to  be  limited,  to  answer  of 
the  matter  aforesaid,  and  to  do  right,  as  good  conscience 
demandeth  it,  and  this  for  the  love  of  God,  and  in  work  of 
charity. 

The  following  general  account  of  these  ancient  bills  is  taken 
from  Spence's  History  of  Equitable  Jurisdiction,  vol.  1,  p.  367. 

"  The  plaintiff  in  his  bill  simply  detailed  the  facts.  It  was 
not  necessary  that  the  bill  should  use  any  particular  phrase- 
ology, or  that  it  should  define  or  describe  the  cause  of  suit 
in  any  set  or  definite  terms,  as  in  a  declaration  at  law ;  it 
was  not  founded  on  any  regula  juris  y  it  frequently  sought 
relief  against  some  rule  of  law.  All  that  the  plaintiff  had 
to  show  was,  that  his  was  a  case  which  ought  to  be  enter- 
tained under  the  powers  given  by  the  general  delegation. 
The  bills  almost  universally  pray  a  subpoena^  sometimes  a 
writ  of  habeas  corpus  cum  causa,  or  writ  of  certiorari  alone  ; 
sometimes  for  subpccna  as  well  as  one  or  the  other  of  those 
writs ;  in  some  instances  a  sergeant-at-arms,  to  bring  up  the 
defendant,  is  prayed  for ;  sometimes  an  injunction.  Some  of 
the  bills  pray  for  the  surety  for  the  peace  as  well  as  other 
relief;  many  of  the  bills  simply  ask  for  relief  generally.  In 
some  instances  the  bill  consists  of  interrogatories,  upon  which 
it  prays  the  defendant  may  be  examined.  The  bills  always 
conclude  in  terms  of  supplication,  as  'for  the  reverence  of 
God  and  for  work  of  charity ;'  the  plaintiff  sometimes  adding, 
'and  he  shall  ever  pray  for  you;'  'and  your  petitioner  shall 
ever  pray,'  etc.,  is  still  appended  to'  every  petition  to  the  chan- 
cellor.    In  ancient  times  the  suhpcena  was  not  issued  unless 


68  BILLS  IN   CHANCERY. 

Ancient  Bills. 

the  case  stated  in  the  bill  was  considered  to  warrant  it,  and 
the  chancellor  sometimes  took  the  advice  of  some  of  the 
judges  on  the  subject.  Sometimes  a  letter  was  first  written 
by  the  chancellor,  urging  the  defendant  to  do  justice  to  the 
plaintiff,  {y) 

iy)  Barton's  Suit  in  Eq.  39,  note  (1). 


CHAPTER  IV. 

F0BM8  OF  THE  CONSTITUENT   PARTS  OF  AN  ORIGINAL  BILL. 
I.     THE    ADDRESS,    (a) 

1.   In  the  Circuit  Court  of  the  United  States. 

To  the  judges  of  the  Circuit  Court  of  the  United  States,  for 
the  District  of : 

^.   In  Illinois. 

To  the  Honorable  ,  Judge  of  the  Circuit  Court  of  the 

County  of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

{The  address  for  the  various  state  courts  can  he  arranged 
according  to  the  title  of  the  court.) 

n,     THE    mTRODUCTION.    (») 

3.   By  a  complainant  under  no  disabilities. 

Your  orator,  A.  B,,  of  the  county  of ,  respectfully  repre 

Bents  unto  your  honor  that,  etc. : 

-4-   By  an  unmarried  woman. 

Tour  oratrix,  C.  D.,  of  the  county  of ,  respectfully  repre- 
sents unto  your  honor  that,  etc. : 

6.   By   a   married  woman   against    her  husband,   or   other 

person. 

Tour  oratrix,  C.  D.,  wife  of  D.  D.,  of  tlie  county  of , 

respectfully  represents  unto  your  honor,  that,  etc. : 

{a)  See  ante,  page  41. 


70  FOKMS   OF  AN   ORIGINAL  BILL. 

The  Address  —  Premises  or  Stating  Part. 

6.     By  husband  and  wife. 

Yoiir  orator  and  oratrix,  A.  B.,  and  C.  B.,  his  wife,  of  the 

county  of ,  respectfully  represent  unto  your  honor  that, 

etc. 

7.     By  an  infant  hy  his  father  and  next  friend. 

Your  orator,  A.  B.,  of  the  county  of ,  an  infant  under 

the  age  of  twenty-one  years,  to-wit,  of  the  age  of years, 

by  E.  B.,  of  the  same  county,  his  father  and   next   friend, 
respectfully  represents  unto  your  honor  that,  etc. 

8.     By  an  infant  hy  his  guardian. 

Your  orator,  A.  B.,  of  the  county  of ,  an  infant  under 

the  age  of  twenty-one,  to-wit,  of  the  age  of years,  by 

E.  F.,  of  the  same  county,  his  guardian,  respectfully  represents 
unto  your  honor  that,  etc. 

9.     By  a  Corporation. 

Your  orator,  the  Company,  a  corporation  duly  estab- 
lished by  the  laws  of  the  State  of ,  respectfully  represents 

unto  your  honor  that,  etc. 

10.     In  the  Circuit  Court  of  the  United  States. 

A.  B.,  of ,  and  a  citizen  of  the  State  of ,  brings 

this  his  bill  against  C.  D.,  of ,  and  a  citizen  of  the  State 

of ,  and  E.  F.,  of ,  and  a  citizen  of  the  State  of ; 

and,  thereupon,  your  orator  complains  and  says  that,  etc.  (b) 

in.     THE    PREMISES    OB    STATING    PAKT.    (c) 

11.  That,  etc.  {Here  insert  all  the  facts  and  circumstances 
of  the  corn/plainanf  s  case,  and  of  the  lorong  or  grievance  com- 
plained of  and  conclude  stating  part  as  follows :)    And  your 

(6)  Rule  20  of  the  Rules  of  Practice  for  the  Courts  of  Equity  of  the 
U.  S.,  adopted  1870. 

(c)    See  ante,  pages  42-52.  ^ 


FORMS   OF   AN    OKIGINAL    BILL.  71 

Confederating  Part  —  Charging  Part. 

orator  well  hoped  that  no  disputes  would  have  arisen  touch- 
ing the  said,  etc.  etc.  {stating  the  subject  matter) ;  but  that  the 
defendant  would  have  complied  with  the  reasonable  request 
of  your  orator,  as  in  conscience  and  equity  he  ought  to  have 
done. 

IV.    THE   CONFEDERATING    PART. 

{This part,  as  we  have  seen,  may  he  omitted  at  the  option  of 
the  pleader.)  {d) 

12.  But  now  so  it  is,  may  it  please  your  honor,  that  the 
said  C.  D.  combining  and  confederating  with  divers  persons, 
{or,  if  there  are  several  defendants,  then  thus:  combining 
and  confederating  with  E.  F.  and  G.  H.,  and  with  divers 
other  persons ;  or,  the  said  L.  M.  and  IT.  M.  combining  and 
confederating  together,  and  with  divers  persons)  at  present 
unknown  to  your  orator,  whose  names,  when  discovered,  your 
orator  prays  he  may  be  at  liberty  to  insert  herein  with  aj)t 
words  to  charge  them  as  parties  defendant  hereto,  and  con- 
triving how  to  wrong  and  injure  your  orator  in  the  premises,, 
he,  the  said  C.  D.,  absolutely  refuses  to  comply  with  such 
request,  and  he  at  times  pretends  that,  etc.  {Here  follows  the 
statement  of  the  defendant s  supposed  ground  on  which  he 
a/voids  the  plaintiff'' s  claim,  and  this  shoidd  he  matter  dis- 
proved or  traversed  in  the  charging  part  of  the  hill.) 

V.    CHARGING    PART. 

{This  part  of  the  hill  may  also  he  omitted  at  the  pleadcr\^ 
option.)  {e) 

13.  That  the  defendant  sometimes  alleges  and  pre'Jends 
{stating  the  supposed  ground  of  the  defendant),  and  at  other 
times  he  alleges  and  pj-etends,  etc. ;  whereas,  your  orator 
charges  the  contrary  thereof  to  be  the  truth,  and  that  {stating 
the  special  matter  vjith  which  the  plaintiff  ineets  the  defend- 
ant's supposed  case.) 


{d)  See  ante,  page  53. 
(e)   See  ante,  page  53. 


72  FOKMS   OF  AN   ORIGINAL   BILL. 

Jurisdictional  Clause  —  Interrogating  Part. 
VI.     JURISDICTIONAL    CLAUSE. 

{TJiis  clause  may  he  omitted  as  unnecessary)  {f) 

14.  All  whicli  actings,  doings,  and  pretenses  of  the  defend- 
ant {or  defendants)  are  contrary  to  equity  and  good  conscience, 
and  tend  to  the  manifest  wrong,  injury  and  oppression  of  your 
orator  in  the  premises.  In  consideration  whereof,  and  inas- 
much as  your  orator  is  entirely  remediless  in  the  premises, 
according  to  the  strict  rules  of  the  common  law,  and  can  only 
have  relief  in  a  court  of  equity,  where  matters  of  this  nature 
.are  properly  cognizable  and  relievable.  To  the  end  therefore,  etc. 


VII.     INTERKOGATING    PART. 

{In  many  cases  this  part  is  unnecessary.)  {g) 

15.  To  the  end,  therefore,  that  the  said  C.  D.  and  the  rest 
'Of  the  confederates,  when  discovered,  may,  upon  their  several 
and  respective  corporal  oaths,  full,  true,  direct  and  perfect 
answers  make  to  all  and  singular  the  matters  hereinbefore 
stated  and  charged  {or  to  all  and  singular  the  prem^ises,  or,  to 
all  and  singular  the  charges  and  matters  aforesaid),  as  fully 
and  particularly  as  if  the  same  were  hereinafter  repeated,  and 
.they  thereunto  distinctly  interrogated  {or  as  fully  in  every 
.respect  as  if  the  same  were  here  again  repeated,  and  they  there- 
unto particularly  interrogated) ;  and  that  not  only  as  to  the 
best  of  their  respective  knowledge  and  remembrance,  but  also 
as  to  the  best  of  their  several  and  respective  information, 
hearsay  and  belief  {or,  according  to  the  hest  of  their  respective 
knowledge,  information,  and  helief) ;  and  more  especially, 
that  they  may  answer  and  set  forth : 

1.  Whether,    etc.      {Here  follows   interrogatories    to    he 
a/nswered  hy  tJte  defendant) 

2.  Whether,  etc. 


(/)   Si-e  ante,  page  54. 
{.g)    St!(j  ante,  page  55. 


FOEMS   OF  AN   ORIGINAL  BILL.  73 

Prayer  for  Relief  —  Prayer  for  Process. 
Viri.     PRAYER    FOR    RELIEF      (A) 

16.  {After  the  interrogating  po/H).  And  that  the  defend- 
ant may  come  to  a  fair  and  just  account,  etc.  {Here  state  the 
particular  relief  asked) ;  and  that  your  orator  may  have  such 
further  and  other  relief  in  the  premises  as  the  nature  of  his 
ease  shall  require,  and  to  your  honor  shall  seem  meet. 

IX.     PRAYER    OF    PROCESS,    {h) 

17.  Prayer  for  summons. 

May  it  please  your  hqnor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sheriff  of  the  said  county  of , 

commanding  him  that  he  summon  the  defendant,  C.  D.,  to  ap- 
pear before  the  said  court,  on  the  first  day  of  the  next term 

thereof,  to  be  held  at  the  court  house  in ,  in  the  county 

of ,  aforesaid ;  and  then  and  there  to  answer  this  bill,  etc. 

18.  Prayer  for  subpoena. 

May  it  please  your  honor  to  grant  unto  your  orator  the  writ 

of  subpoena  of ,  to  be  directed  to  the  said  C.  D.,  and  the 

rest  of  the  confederates  when  discovered,  thereby  commanding 
them,  and  every  of  them,  at  a  certain  day  and  under  a  certain 
penalty,  therein  to  be  specified,  {or.,  therein  to  he  inserted,)  per- 
sonally to  be  and  appear  before  this  honorable  court,  and  then 
and  there  to  answer  all  and  singular  the  premises,  and  to 
stand  to,  perform  and  abide  such  order  and  decree  therein,  as 
to  your  honor  shall  seem  meet. 

19.     Prayer  for  injunction. 

{After  the  jprayer  for  summons  or  suhpcena,  as  in  the  two 
last  forms,  add  the  following :) 

And  may  it  please  your  honor  to  grant  unto  your  orator  the 
people's  writ  of  injunction,  to  be  directed  to  the  said  C.  D., 
restraining  him,  etc.  {Here  insert  the  matter  sought  to  he  en- 
joined), until  the  further  order  of  said  court. 

Qh)  See  ante,  page  58. 


CHAPTER  V. 

PKOCESS    FOR    APPEARANCE. 


Section  1. 

Summons. 

2. 

Service  and  Return. 

3. 

Notice  by  Publication. 

4. 

Service  by  Copy  of  Bill. 

5. 

Unknown  Defendants. 

G. 

Attacument. 

7. 

Attachment  with  Proclamation. 

8. 

Commission  of  Rebellion. 

9. 

Sergeant  AT- Arms. 

10. 

Sequestration. 

SECTION  I. 

SUMMONS. 

The  statute  of  Illinois  provides,  that,  "  upon  the  filing  of 
every  bill,  the  clerk  of  the  court  shall  thereupon  issue  a  sum- 
mons, tested,  dated  and  sealed,  as  a  summons  in  common  law 
suits,  directed  to  the  sheriff  of  the  county  in  which  the  defend- 
ant resides,  if  the  defendant  be  a  resident  of  this  State,  requir- 
ing him  to  appear  and  answer  the  bill  on  the  return  day  of  the 
summons ;  and  where  there  are  several  defendants,  residing  in 
different  counties,  a  separate  summons  .shall  be  issued  to  each 
county,  including  all  the  defendants  residing  therein."  (a) 

A  summons  must  describe  the  parties  correctly,  (5)  and  be 
under  seal,  (<?)  or  it  will  be  quashed  on  motion,  {d)  But  such  a 
defect  cannot  be  taken  advantage  of  after  a  general  appear- 
ance, {e) 

(a)  Rev.  Stat.  (1874)  199;  Rev.  Stat.  (1877)  185;  see  Hochlander  vs. 
Hochlamhr,  73  111.  618. 

(5)    Richardson  vs.  Thompson,  41  111.  202. 

{r)  '  Onrland  vs.  Britton,  12  111.  232;  Besimer  vs.  The  People,  15  111.  440; 
Beauhien  vs.  Sabine,  2  Scam.  460. 

(d)  ITannum  vs.  Thompson,  1  Scam.  238 ;  Anglin  vs.  Nott,  1  Scam.  895. 

(e)  Eaiton  vs.  Altum,  1  Scam.  250. 


PROCESS   FOR  APPEARANCE.  75 

Service  and  Return  of  Summons.  " 


SECTION  II. 
SERVICE    AND    KETUEN    OF    SUMMONS. 

The  ninth  section  of  the  chancery  act  of  Illinois,  provides, 
that,  "  every  summons  in  chancery  shall  be  made  to  the  next 
term  of  the  court  after  the  date  thereof,  or  the  next  succeed- 
ing term  thereafter."  And  section  ten  of  the  same  act  pro- 
vides, that  "  if,  in  any  suit  in  chancery,  the  process  shall  not 
be  returned,  executed  on  or  before  the  return  day  thereof, 
the  clerk,  if  required,  shall  issue  an  alias,  pluries,  or  other 
process,  without  an  order  of  court  therefor,  [f) 

How  served. —  The  statute  of  Illinois  requires,  that,  "  service 
of  summons  shall  be  made  by  delivering-  a  copy  thereof  to 
the  defendant,  or  leaving  such  copy  at  his  usual  place  of 
abode,  with  some  person  of  the  family,  of  tlie  age  of  ten 
years  -or  upwards,  and  informing  such  person  of  the  contents 
thereof.  If  service  is  not  had  at  least  ten  days  before  the 
return  day  of  such  summons,  the  case  shall  stand  continued 
till  next  term  of  the  court."  {(j) 

The  return. —  The  "return  of  the  service  of  a  summons, 
except  when  otherwise  provided  by  the  statute,  must  show 
the  time  when,  upon  whom,  and  how  the  service  was  made. 
A  return,  stating  that  the  sununons  has  been  duly  served  on 
C.  D.  according  to  law  is  not  sufficient.  (A) 

The  service  must  be  made  strictly  in  accordance  with  the 
statute,  and  so  shown  by  the  returns  of  the  officer,  or  the 
court  will  not  have  jurisdiction  of  the  person,  {i)  Where  the 
service  is  insufficient  to  confer  jurisdiction,  the  decree  as  to 
the  defendants  is  a  nullity,  and  may  be  questioned  in  a  collat- 
eral proceeding,  {j ) 

(/)  Rev.  Stat.  (1874)  199;  Rev.  Stat.  (1877)  185. 

{(j)    lb.;  see  Mach  vs.  Brown,  73  111.  295. 

[h]  Ball  vs.  Shaftnck,  16  111.  299;  Wilson  ws.  Greathotise,  1  Scam.  174, 
176;  Bellingall  vs.  Gear,  3  Scam.  575;  Miller  ms.  Handy,  40  111.  448. 

{i)  Cost  vs.  Rose,  17  HI.  276;  Borland  vs.  Boyland,  18  111.  551 ;  Miller  vs. 
Mills,  29  111.  431;  Fisher  vs.  Fisher,  54  111.  231. 

(./)  Botsford  vs.  O'Conner,  57  111.  72;  Hochlauder  vs.  Hochlander,  73  111. 
618;  see  McNah  vs.  Young.  81  111.  11. 


76  PEOCESS   FOR  APPEARANCE. 

Service  and  Return  of  Summons. 

Where  service  is  by  smnmons,  parol  evidence  will  not  be 
heard  to  prove  or  to  aid  it.  It  is  otherwise  when  it  is  by 
publication,  {k) 

If  the  return  of  the  officer  does  not  show  the  date  of  the 
service,  but  the  decree  recites,  "  that  the  defendants  were 
duly  served,"  such  recital  was  held  to  cure  the  defect  in 
the  return.  (Z)  And  a  return  "  this  writ  personally  served 
by  deliv-ering  copies  of  the  same  to  the  within  named  defend- 
ants "  is  sufficient.  In  such  case  the  court  will  presume  that 
the  service  was  had  on  such.  {?n)  But  a  return  of  service,  "  on 
the  within  named  defendants,"  not  giving  the  name,  there 
oeing  two  defendants  named  in  the  summons,  is  insufficient,  (n) 

Where  service  is  made  by  delivering  a  copy  to  a  third  per- 
son, the  return  must  state  the  name  of  the  person  to  whom 
the  copy  was  delivered  ;  that  he  was  over  ten  years  of  age ; 
a  member  of  the  family  of  the  defendant ;  that  it  was  at 
the  defendant's  usual  place  of  abode ;  and  that  the  officer 
informed  such  person  of  the  contents  thereof,  {o) 

If  the  return  fails  to  state  the  name  of  the  person  with  whom 
the  copy  of  the  summons  was  left,  [p)  or  that  he  was  a  member 
of  the  family,  (q)  or  that  it  was  at  the  defendant's  usual  place 
of  abode,  (r)  or  that  the  officer  informed  the  person  with  whom 
he  left  the  copy,  of  the  contents  thereof,  {s)  it  is  defective.  But 
where  a  copy  is  left  with  the  wife,  for  her  husband,  at  her  resi- 
dence, it  will  be  presumed  to  be  the  place  of  the  abode  of  the 

(k)    Botsford  vs.  0' Conner,  57  111.  72. 

(0     Kivard  vs.  Gardner,  39  111.  125. 

(m)  Barnes  vs.  Hazelton,  50  111.  429 ;  Qreenman  vs.  Havmy,  53  111.  386 ; 
Martin  \<.  Harqnrden,  46  111.  322;  Hedges  vs.  Mace.  72  111.  472. 

(m)    Richardson  vs.  Thompson,  41  111.  202;  Whitman  vs.  Fisher,  74  111.  147. 

(a)    DinlUiss  vs.  Wkitmire,  20  111.  425 ;  Ftsher  vs.  Fisfier,  54  111.  234. 

(p)  Montgomery  vs.  Brown,  2  Gilm.  584. 

{q)  Townsend  vs.  Griggs,  2  Scam.  366  ;  Boyland  vs.  Boyland,  18  111.  522; 
Fisher  vs.  Fisher,  54  111.  552 ;  Montgomery  vs.  Brown,  2  Gilm.  581 ;  Bivilbliss 
vs.  Whitmire,  20  111.  425. 

(r)  Boyland  vs.  Boyland,  18  III.  552. 

(«)    Tompkins  vs.  Wiltberger,  56  111.  385. 


PKOCESS  FOR  APPEARANCE.  77 

Publication  —  Time  of  Publication. 

husband,  (t)    The  return  must  state,  however,  that  it  was  at  his- 
or  his  wife's  residence,  (u) 

SECTION  III. 
NOTICE    BY    PUBLICATION. 

The  statute  of  Illinois  provides  that,  "whenever  any  com- 
plainant, or  his  attorney,  shall  iile  in  the  office  of  the  clerk  of 
the  court  in  which  suit  is  pending,  an  affidavit  showing  that  any 
defendant  resides,  or  hath  gone  out  of  this  state,  or  on  due 
inquiry  cannot  he  found,  or  is  concealed  within  this  state,  so 
that  process  cannot  be  served  upon  him,  and  stating  the  place 
of  residence  of  such  defendant,  if  known,  or  that  upon  diligent 
inquiry  his  place  of  residence  cannot  be  ascertained,  the  clerk 
shall  cause  publication  to  be  made  in  some  newspaper  printed 
in  his  county,  and,  if  there  be  no  newspaper  published  in  his 
county,  then  in  the  nearest  newspaper  published  in  this  state, 
containing  notice  of  the  pendency  of  such  suit,  the  names  of 
the  parties  thereto,  the  title  of  the  court,  and  the  time  and  place 
of  the  return  of  the  summons  in  the  case ;  and  he  shall  also, 
within  ten  days  of  the  first  publication  of  such  notice,  send  a 
copy  thereof  by  mail,  addressed  to  such  defendant,  whose  place 
of  residence  is  stated  in  such  affidavit.  The  certificate  of  the 
clerk,  that  he  has  sent  such  notice  in  pursuance  of  the  statute, 
will  be  evidence." 

Time  of  jpublication. — "The  notice  required  maybe  given 
at  any  time  after  the  commencement  of  the  suit,  and  shall  be 
published  at  least  once  in  each  week  for  four  successive  weeks, 
and  no  default  or  proceeding  shall  be  taken  against  any  defend- 
ant not  served  with  summons,  or  a  copy  of  the  bill,  and  not 
appearing,  unless  forty  days  shall  intervene  between  the  first 
publication  of  the  notice,  and  the  first  day  of  the  term  at  which 
such  default  or  proceeding  is  proposed  to  be  taken."  {v) 

(«)    I'rieto  vs.  Duncan,  23  111.  26;  see  Mack  vs.  Brown,  73  111.  295. 
ill)   Miller  vs.  Mills,  29  111.  431. 

(r)  Rev.Stat.  (1874)  199;  Rev.  Stat.  (1877)  185;  see  Clark  vs.  Marjield, 
77  111.  258. 


78  PKOCESS   FOR  APPEAEANCE. 

Affidavits  for  Publication. 

No.  5.     Affidavit  for  puhlication  —  non-residence  of  defend- 
ant—  stating  place  of  residence. 

State  of  Illinois,  ) 

County  of \ 

In  tlie court. 

A.  B.  I  To  the Term,  18—. 

vs.  >  In  Chancery. 

C.  D.  and  E.  F.  ) 

A.  B.,  the  above  named  complainant,  on  oath  states,  that  E. 
F.,  one  of  the  above  named  defendants,  is  not  a  resident  of  this 
state,  but  as  affiant  is  informed  and  believes,  he  now  resides  in, 
etc.     {Here  insert  the  place  of  residence,  if  hnoion.) 

A.  B. 

Subscribed  and  sworn  to  before  me,  this day  of , 

A.  D.  18—.  ,  Clerk. 


No.  6.    Affidavit  for  publication  —  non-residence  of  defend- 
ants — place  of  residence  not  hnown. 

{State  the  venue  and  title  of  cause,  as  in  above  form.) 
A.  B.,  the  above-named  complainant,  on  oath-  states  that  the 
above-named  defendants,  C.  I),  and  E.  F.,  are  not  residents  of 
this  state;  affiant  further  states  that  he  has  made  diligent 
inquiry  to  learn  their  place  of  residence,  and  has  been  unable 
to  ascertain  the  same  A.  B. 

Subscribed,  etc. 

No.  7.    Affidavit  for  publication  —  that  the  defendant  cannot 

be  found. 

{State  the  venue  and  title  of  cause,  as  in  No.  5,  above.) 
A.  B.,  the  above-named  complainant,  on  oath  states  that  he 
has  made  due  inquiry  to  learn  the  place  of  residence  of  the 
said  defendants,  C.  D.  and  E.  F.,  and  is  unable  to  ascertain  the 
same.     Affiant  further  states  that  the  last  known  place  of 

residence  of  the  said  defendants  was  in  ,  in  this  state, 

which  place  they  left  about years  ago,  since  which  time 

this  afiiant  has  been  unable  to  obtain  any  information  as  to 
their  residence,  although  he  has  made  inquiries  of  the  former 
neighbors  and  acquaintances  of  the  said  defendants,  and  of  such 


PKOCESS  FOR  APPEARANCE.  79 


Affidavits  for  Publication  —  Service  by  Copy  of  Bill. 

of  their  known  relatives  as  would  be  likely  to  be  knowing  to 
their  place  of  residence.  A,  B. 

Subscribed,  etc. 

No.  8.   Affidavit  for  puhlication  —  that  the  defendant  is  con- 
cealed within  this  state. 

{State  the  venue  and  title  of  cause,  as  in  No.  5,  ante,  jpage 
78.)     A.  B.,  the  above-named  complainant,  on  oath  states  that 

the  above-named  defendant,  C.  D.,  resides  in in  this  state ; 

and  that  he  is  concealed  within  this  state,  so  that  process  cannot 
be  served  upon  him.  Affiant  further  states  that,  etc.  {Here  state 
the  circumstances  which  induce  a  helief  that  the  defendant  is 
concealed.)  A.  B. 

Subscribed,  etc. 

Continuance  for  publication. — "  If  for  want  of  due  publi- 
cation or  service,  a  cause  shall  be  continued,  then  the  same 
proceedings  shall  be  had  at  a  subsequent  term  of  the  court,  in 
relation  to  publication,  as  may  have  been  had  at  the  time  to 
which  the  summons  is  returnable."  (z«) 


SECTION  IV. 
SERVICE    BY    COPY    OF    BILL. 

The  statute  of  Illinois  provides  that  "the  complainant 
may  cause  a  copy  of  the  bill  or  petition,  together  with  a  notice 
of  the  commencement  of  the  suit,  to  be  delivered  to  any  de- 
fendant residing  or  being  without  this  state,  not  less  than 
thirty  days  previous  to  the  commencement  of  the  term  at 
which  such  defendant  is  required  to  appear;  which  service, 
when  proved  to  the  satisfaction  of  the  court,  shall  be  as  eifect- 
ual  as  if  such' service  had  been  made  in  the  usual  form,  within 
the  limits  of  this  state.  The  service  by  a  copy  of  the  bill  or 
petition  may  be  proved  by  the  affidavit  of  the  person  serving 
the  same,  made  before  any  officer  authorized  to  administer 
oaths  in  the  place  where  the  affidavit  is  made ;  or  in  case  the 
service  is  made  in  any  foreign   country,  before  any  United 

{tv)   Rev.  Stat.  (1874)  200;  Rev.  Stat.  (1877)  186. 


80  PKOCESS   FOR  APPEARANCE. 


Service  by  Copy  of  Bill,  etc. 


States  minister  or  consul  residing  in  the  country  where  the 
same  is  made,  {x) 

It  will  be  observed  that  the  foregoing  section  refers  only  to 
the  service  of  defendants  "residing  or  being  without  this 
state."  Parties  residing  within  the  state  cannot  be  served 
with  a  copy  of  the  bill,  (y)  and  decrees  rendered  under  service 
by  copy  of  the  bill  are  said  to  be  only  binding  in  this  state, 
or  on  residents  thereof.  (2) 

]Vo.  9.     Notice  to  he  served  with  a  copy  of  hill  on  non-resident 

defendant. 

State  of  Illinois,  ) 

County  of f 

In  the Court. 

A.  B.  )  To  the Term,  A.  D.  18—. 

vs.     ]■  In  Chancery. 

CD.) 
To  C.  D.,  the  above-named  defendant : 

You  are  hereby  notified  that  a  bill  in  chancery,  with  a  copy 
of  which  you  are  herewith  served,  will  be  filed  against  you 

in  the court  of county,  in  the  State  of  Illinois,  by 

the  said  A.  B.,   complainant,  to  the  term,  A.  D.  18 — . 

Now,  unless  you  shall  personally  be  and  appear  before  said 

court,  on  the  first  day  of  the  term  thereof,  to  be  held  in , 

in  said  county,  on  the day  of ,  A.  D.  18 — ,  and  plead, 

answer  or  demur  to  the  said  bill,  the  same  and  the  matters  and 
things  therein  charged  and  stated,  will  be  taken  as  confessed, 
and  a  decree  entered  against  you  according  to  the  prayer  of 

said  bill.  , 

Solicitor  for  the  Complainant. 

No.  10.     Affida/vit  of  the  service  of  copy  of  hill  and  notice. 

State  of ,        ) 

County  of \ 

G.  H.,  of,  etc.,  upon  his  oath  states,  that  he  served  a  copy  of 
the  foregoing  bill  in  chancery,  and  notice  of  the  commence- 

{x)   Rev.  Stat.  (1874)  200;  Rev.  Stat.  (1877)  185. 
{y)    Townsend  vs.  Townsend,  21  111.  540. 

{z)  Bishop  vs.  Withered,  9  Wal.  U.  S.  R.  814;  W.  N.  Tel.  Co.  vs.  P.  d-A. 
Tel.  Co.  49  111.  94;  Cooley  on  Const.  Lim.  403. 


PKOCESS   FOE  APPEARANCE.  81 

Unknown  Defendants  —  Attachment. 

ment  of  suit,  upon  C.  D.,  of,  etc.,  the  defendant  named  in  said 

bill,  by  delivering  the  same  to  him  personally,  on  the 

day  of ,  A.  D.  18—.  G.H. 

Subscribed,  etc. 

SECTION  V. 

^  UNKNOWN    PERSONS    AS    DEFENDANTS. 

The  statute  of  Illinois  provides,  that  "  in  all  suits  in 
chancery,  and  suits  to  obtain  title  to  lands,  in  any  of  the 
courts  of  this  state,  if  there  be  persons  interested  in  the  same, 
whosernames  are  unknown,  such  persons  may  be  made  parties 
to  such  suits  or  proceedings  by  the  name  and  description  of 
unknown  owners,  or  unknown  heirs  or  devisees  of  any  de- 
ceased person,  who  may  have  been  interested  in  the  subject 
matter  of  the  suit  previous  to  his  or  her  death ;  but  in  all 
such  cases  an  affidavit  must  be  filed  by  the  party  desiring  to 
make  any  unknown  person  a  party,  stating  that  the  names 
of  such  persons  are  unknown,  and  process  shall  be  issued 
against  all  parties  by  the  name  and  description  given ;  and 
notices  given  by  publication  shall  be  sufficient  to  authorize 
the  court  to  hear  and  determine  the  suit,  as  though  all  parties 
had  been  sued  by  their  proper  names."  (a) 

SECTION   VI. 

ATTACHMENT. 

The  statute  of  Llinois  provides,  that  "  every  defendant  who 
shall  be  summoned,  served  with  a  copy  of  the  bill  or  petition, 
or  notified  as  required  in  this  act,  shall  be  held  to  except, 
demur,  plead  or  answer  on  the  return  day  of  the  summons; 
or  if  the  summons  is  not  served  ten  days  befoi-e  the  first  day 
of  the  term  at  which  it  is  returnable,  by  the  first  day  of  the 
next  term ;  or  in  case  of  service  by  copy  of  the  bill,  or  by 
notice,  at  the  expiration  of  the  time  required  to  be  given,  or 
within  such  further  time  as  may  be  granted  by  the  court ;  or 
in  default  thereof,  the  bill  may  be  taken  as  confessed."  (b) 

(a)  Rev.  Stat.  (1874)  199;  Rev.  Stat.  (1877)  185;  see  Newlin  vs.  Snyder, 
78  Til.  528. 

(6)    Rev.  Stat.  (1874)  200;  Rev.  Stat.  (1877)  186. 


82  PROCESS   FOR  APPEARANCE. 

Attacliment  of  Defendant  to  Compel  an  Answer. 

Where  a  defendant  has  been  personally  served  with  subpoena 
or  summons,  or  notified,  he  is  bound  to  appear  and  answer  to 
the  charges  preferred  against  him  in  the  bill  within  the  time 
limited  by  the  statute  or  the  practice  of  the  court,  or  compul- 
sory process  may  be  awarded  against  him,  for  his  contempt 
in  neglecting  the  requisitions  of  the  subpoena  or  summons. 
Appearance  was  formerly  absolutely  necessary  in  every  case, 
before  any  decree  could  be  rendered  against  him.  Where  the 
defendant  did  not  voluntarily  obey  the  injunctions  of  the 
writ  by  entering  his  appearance  on  its  return,  a  long  chain 
of  process  was  resorted  to,  ending  in  a  sequestration  of  his 
property,  for  the  purpose  of  compelling  an  appearance.  There 
were  many  cases,  however,  in  which  the  complainant  had  no 
effectual  remedy ;  as  where  the  defendant  could  not  be  served 
with  process  at  all ;  or  w^here,  notwithstanding  the  commit- 
ment of  his  person,  and  the  sequestration  of  his  j^roperty,  he 
persisted  in  refusing  to  appear  and  put  in  his  answer.  To 
make  the  process  of  the  court  more  effectual  there  are  various 
statutory  enactments,  both  in  England  and  the  different  states 
of  this  country,  providing  for  a  decree  ])ro  confesso  founded 
upon  the  statements  of  the  complainant's  bill.  The  process 
for  effecting  a  compulsory  appearance  has  fallen  into  compara- 
tive disuse  since  the  passage  of  these  statutes,  (c) 

The  first  of  these  processes  is  an  attachment,  which  is  in  the 
nature  of  a  capias,  at  common  law,  and  is  directed  to  the 
sheriff,  commanding  him  to  attach  or  take  up  the  person  of 
the  defendant,  and  bring  him  into  court. 

In  ordinary  cases,  as  where  the  oath  of  the  defendant  is 
waived,  the  complainant  will  not  necessarily  require  an  answer, 
but  will  seek  to  obtain  a  decree  by  default.  But  where  the 
object  of  the  bill  is  to  obtain  a  discovery,  as  in  a  creditor's  bill, 
and  the  like,  where  an  answer  under  oath  is  requisite,  and  the 
defendant  fails  to  put  in  an  answer,  further  steps  must  be  taken 
to  procure  an  answer. 

The  statute  provides,  that,  "  if  a  defendant  in  any  proceed- 
ings in  equity,  having  been  served  with  summons,  or  personally 

(c)  Barton's  Suit  in  Eq.  83-84. 


PROCESS   FOE  APPEARANCE.  83 

Attacliment  of  Defendant  to  Compel  an  Answer. 

notified,  as  provided  in  tins  act,  shall  fail  or  refuse  to  appear  or 
answer  the  bill  of  complaint,  he  may  be  attached  and  otherwise 
proceeded  against  according  to  the  practice  in  equity  in  cases 
of  contempt."  id) 

now  obtained. — Under  the  old  practice,  where  ser\ace  was 
had  by  a  delivery  to  the  defendant  of  a  copy  of  the  bill,  or 
where  the  subpoena,  was  served  by  the  complainant  or  his  solic- 
itor, it  would  seem  to  be  necessary  to  show  such  service  by 
affidavit,  before  an  attachment  would  be  ordered.  But  in  Illi- 
nois, where  the  summons  in  chancery  is  served  by  the  sheriff  of 
the  county,  and  the  evidence  of  such  service  is  required  to  be 
shown  by  the  officer's  return,  an  affidavit  of  the  service  would 
be  unnecessary,  as  the  court  will  act  upon  the  officer's  return. 
An  affidavit  showing  that  a  discovery  is  necessary  from  the 
defendant,  as  to  the  matters  of  the  bill,  may,  however,  be 
required. 

If  the  defendant  appears  personally,  or  is  brought  into  court 
by  the  sheriff,  on  the  return  of  the  attachment  for  not  answer- 
ing, he  must  put  in  his  answer  and  pay  the  costs  incurred  by 
his  contempt,  instanter,  or  within  such  time  as  the  court  shall 
appoint,  or  be  committed  until  he  complies,  {e) 

Where  a  party  is  in  contempt,  the  court  will  not  grant  an 
application  in  his  favor,  which  is  not  a  matter  of  strict  right, 
until  he  has  purged  his  contempt,  {f)  He  must  clear  his  con- 
tempt before  he  can  take  any  effectual  proceedings  in  the  cause ; 
and  if  he  be  in  custody  for  want  of  an  answer,  he  cannot  be 
•liberated  therefrom  before  he  has  filed  his  answer,  paid  or 
tendered  the  costs  of  his  contempt,  and  obtained  an  order  of 
his  discharge,  {g) 

If  the  complainant  amends  his  bill,  he  waives  his  process  of 
contempt ;  {h)  and  if  he  accepts  the  defendant's  answer,  or 
replies,  or  moves  upon  it,  which  implies  acceptance,  he  oan- 

{d)   Rev.  Stat.  (1874)  203;  Rev.  Stat.  (1877)  188. 

[e)    1  Barb.  Ch.  Pr.  88. 

(/)  Johnson  vs.  Pinney,  1  Paige,  Ch.  646. 

(g)    1  Barb.  Ch.  Pr.  88;  Gold's  Doct.  of  Eq.  136, 

{h)   Gray  vs.  Campbell,  1  Russ.  &  My.  323 


84  PEOCESS   FOE  APPEAEANCE. 

Attachment  —  Attachment  with  Proclamation. 

not  use  the  process  of  contempt  for  the  purpose  of  getting 
costs.  (*) 

iVb.  11.     Affidavit  to  obtain  an  attachment  against  the  defend- 
ant for  not  answering. 

{Title  of  cause  as  in  No.  5,  ante,  page  78.)  A.  B.,  the  above 
named  complainant,  on  oath  states,  that  a  discovery  is  neces- 
sary in  this  cause  from  the  defendant,  as  to  the  matters  of  the 
said  bill  of  complaint,  and  the  several  interrogatories  therein 
contained.  A.  B. 

Subscribed,  etc. 

No.  12.     Order  for  an  attachment  for  not  answering. 

{Caption,  with  title  of  cause.)  It  appearing  to  the  court, 
that  the  defendant  herein  was  duly  served  with  summons  in 
this  cause,  more  than  ten  days  before  the  first  day  of  the  pre- 
sent term  of  this  court,  to  appear,  except,  demur,  plead  or 
answer  the  complainant's  said  bill  of  complaint ;  and  it  further 
appearing  to  the  court  that  the  defendant  has  failed  {or  refused) 
to  appear  or  answer  the  said  bill  of  complaint,  as  required  bj 

law ;  on  motion  of  Mr. ,  solicitor  for  the  complainant,  it 

is  ordered,  that  an  attachment  be,  and   the  same  is  hereby 
awarded  against  the  said  defendant,  C.  D.,  returnable  forthwith. 


SECTION  VII. 
ATTACHMENT    WITH    PKOCLAMATION. 

If  the  sheriff  to  whom  the  writ  of  attachment  is  directed 
apprehends  the  defendant,  he  is  detained  in  custody  until  he 
enters  his  appearance  and  puts  in  an  answer  to  the  complain- 
ant's bill.  If  the  sheriff  returns  non  est  inventus,  he  is  not 
to  be  found,  an  additional  process  is  awarded  against  the 
defendant,  which  is  termed  an  attachment  with  proclamation ; 
which,  besides  the  ordinary  form  of  attachment,  directs  the 
sheriff  to  cause  public  proclamations  to  be  made  throughout 
the  county,  to  summons  the  defendant  on  his  allegiance,  per- 
sonally to  appear  and  answer  the  charges  brought  against' 
him.  {J) 

(t)  Anon.  15  Ves.  174. 

(j)  Barton's  Suit  in  Eq.  85;  1  Barb.  Ch.  Pr.  62,  63;  Gilb.  For.  Rom.  77; 
1  Dan  Ch.  Pr.  606. 


PROCESS   FOK  APPEARANCE.  85 

Commission  of  Rebellion  —  Sergeant-at-Arms. 

SECTION  VIII. 
COMMISSION    OF    REBELLION. 

If  the  writ  of  attaclinient  witli  proclamation  be  returned 
non  est  inventus,  and  the  defendant  still  remains  in  contempt, 
a  commission  of  rebellion  is  awarded  against  him  for  not  obey- 
ing the  proclamation  according  to  his  allegiance.  This  com- 
mission is  generally  directed  to  commissioners  therein  named, 
who  are  jointly  and  severally  commanded  to  attach  the  defend- 
ant, wherever  he  may  be  found  within  the  state.  The  reason 
given  for  this  process  being  directed  to  commissioners,  and  not, 
like  the  writ  of  attachment  to  the  sheriflf,  is,  "  that  the  defend- 
ant is  a  rebel  and  contemner  of  the  laws,  and  to  be  dealt 
with  as  such ;  and  as  the  sheriff  cannot  be  supposed  to  be 
capable  of  executing  all  the  process  directed  to  him  in  per- 
son, it  may  be  inconvenient  to  trust  so  great  a  power  with 
the  deputies  of  his  appointment,  and  therefore  the  court 
appoints  its  own  commissioners,  who  are  intrusted  to  do  every- 
thing very  carefully,  and  are  answerable  to  the  court  for  their 
miscarriage."  (Jc) 

SECTION  IX. 
SERGEANT-AT-ARMS. 

By  the  English  practice,  if  the  commission  of  rebellion  is 
returned  no7i  est  inventus,  the  court,  on  motion  to  that  effect, 
will  dispatch  a  sergeant-at-arms  in  search  of  the  defendant. 
It  is  said,  however,  that  the  English  course  in  this  respect 
cannot  be  pursued  here ;  our  statutes  having  virtually  taken 
away  from  the  sergeant-at-arms  the  power  of  executing  the 
process  of  the  court,  {l)  The  sheriffs  of  the  respective  coun- 
ties are  made  officers  of  the  court  to  execute  the  process 
thereof. 

(k)  Qilb.  For.  Rom.  77;  Hinde,  Ch.  Pr.  116;  1  Dan.  Cli.  610;  Barton's 
Suit  in  Eq.  86,  note  (1) ;  1  Barb.  Ch.  Pr.  63. 

(Z)    1  Hoff.  Ch.  Pr.  126,  note ;   1  Barb.  Ch.  Pr.  66 ;  Barton's  Suit  in  Eq.  87. 


86  PKOCESS  FOR  APPEARANCE. 

Sequestration. 


SECTION  X. 
SEQUESTRATION. 

If  the  defendant  is  taken  upon  any  of  the  processes  we 
have  mentioned  in  this  chapter,  he  is  committed  to  the  jail, 
unless  he  enters  his  appearance  and  answers  according  to  the 
practice  of  the  court;  and  also  clears  his  contempt,  by -paying 
of  the  costs  and  fine  imposed  by  reason  of  his  contumacious 
behavior.  But  if  he  likewise  eludes  the  search  of  the  sherifl 
while  acting  as  sergeant-at-arms,  a  sequestration  issues.  This, 
like  the  commission  of  rebellion,  is  awarded  upon  motion, 
grounded  on  the  return  of  the  sheriff,  as  sergeant-at-arms, 
and  is  directed  to  certain  commissioners  therein  named,  au- 
thorizing and  commanding  them  to  possess  themselves  of  all 
his  personal  estate  whatever,  and  the  rents  and  profits  of  his 
real  estate,  until  satisfaction  is  made  of  the  complainant's 
demands,  and  the  court  shall  further  order,  (m) 

(to)    Barton's  Suit  in  Eq.  88  ;  1  Barb.  Cli.  Pr.  68-75  ;    Hinde.  Ch.  Pr.  127  ; 

Bee  Morrice  vs.  Bank  of  Eng.  Talb.  Cas.  322  ;  Kinney  vs.  Yardley,  Dick.  266 ; 
Lzipton  vs.  Hercolt,  1  Sim.  &  Stu.  274;  Detillin,  vs.  Oale,  1  Sim.  &  Stu. 
275,  note. 


CHAPTER  VI. 

TAXING    BILLS    AS    CONFESSED. 

Section  1.  Default. 

2.  Rights  op  Dependant  after  a  Default. 

3.  Setting  aside  a  Default. 

4.  Setting  aside  a  Decree,  when  Dependant  is  not  per- 

sonally notified. 


SECTION  I. 

default. 

When  it  Tnay  le  taken. —  The  sixteenth  section  of  the  act 
reguhiting  the  practice  in  the  court  of  chancery,  in  Illinois, 
provides  that  "  every  defendant  who  shall  be  summoned,  served 
with  a  copy  of  the  bill  or  petition,  or  notified  as  required  by 
this  act,  shall  be  held  to  except,  demur,  plead  or  answej'  on  the 
return  day  of  the  summons ;  or  if  the  summons  is  not  served 
ten  days  before  the  first  day  of  the  term  at  which  it  is  return- 
able, by  the  first  day  of  the  next  term ;  or  in  case  of  service  by 
copy  of  the  bill,  or  by  notice,  at  the  expiration  of  the  time 
required  to  be  given,  or  within  such  further  time  as  may  be 
granted  by  the  court ;  or  in  default  thereof,  the  bill  may  be 
taken  as  confessed."  {a) 

To  except.,  in  the  section  referred  to,  means  to  object  to  the 
proceedings  by  motion  or  suggestion  to  the  court. 

Bxile  to  am^swer. — There  is  no  rule  of  practice  in  Illinois 
requirmg  the  court  to  enter  a  rule  on  defendant  duly  served 
with  process  to  answer.  It  is  the  duty  of  the  defendant  to  a 
bill  to  appear  at  the  time  he  is  required  by  the  sunmions  and 
interpose  his  defense,  and  if  he  fails  to  do  so,  he  is  in  default, 
and  the  bill  may  be  taken  as  confessed  against  him.     If  he 

(a)    Rev.  Stat.  (1874)  200;   Rev.  Stiit.  (1877)  186. 


-88  TAKING   BILLS   AS   CONFESSED. 

Default  —  Effect  of  a  Default. 

desires  further  time  than  the  ten  days  allowed  by  the  statute, 
after  the  service,  to  prepare  his  defense,  he  should  apply  to  the 
■court  for  further  time ;  and  if  he  makes  no  defense,  the  prac- 
tice warrants  a  decree  pro  confesso  on  the  return  day  of  the 
summons,  if  the  service  is  sufficient .  (&) 

The  correct  practice,  however,  on  overruling  a  demurrer  to 
a  bill  is  for  the  court  to  enter  a  rule  on  the  defendant  to 
answer.  But  the  court  may  render  a  decree  ^ro  confesso 
thereon,  (c)  But  it  is  regarded  as  the  better  practice,  when 
preliminary  motions  or  exceptions  to  the  proceedings  are 
■disposed  of,  to  enter  a  rule  to  answer,  {d) 

Effect  of  a  default. — Where  adult  defendants  permit  the  bill 
to  be  taken  as  confessed,  they  thereby  admit  the  truth  of  the 
allegations  of  the  bill,  and  the  practice  fully  warrants  the  ren- 
dition of  a  decree  granting  relief,  without  proof,  if  the  bill 
contains  equity.  If  the  court  has  reason  to  believe,  or  from 
any  cause  is  apprehensive  that  injustice  is  likely  to  result  from 
granting  the  relief  without  proof,  then  it  should  be  required. 
But  this  is  a  matter  of  sound  discretion  in  the  chancellor,  and 
its  omission  or  requirement  cannot  be  assigned  for  error, 
■unless  the  record  discloses  that  the  action  has  resulted  in  wrong 
to  the  defendants.  Where  there  are  non-resident  defendants, 
only  served  by  publication,  the  courts  are  more  inclined  to 
require  proof  than  in  cases  where  there  has  been  actual  service. 
{e)  Where  the  court  determines  to  hear  evidence  upon  a 
■default,  it  is  not  necessary  that  the  same  should  be  reduced  to 
writing  and  Ije  preserved  in  the  record  of  the  case,  {f) 


(6)    G^ro&&  vs.  C«s7ima7i,  45  111.  124. 

(c)  Miller  vs.  Davidson,  3  Gilm.  528;  Roacfi  vs.  Chapiii,  27  111.  R.  197. 
Waugelin  vs.  Goe,  50  111.  459. 

(d)  Ottawa  vs.  Walker,  21  111.  610. 

(e)  Moore  vs.  Litman,  33  111.  358 ;  Sullivan  vs.  Sullivan,  42  111.  316 ; 
Cronan  vs.  Frizcll,  Id.  319 ;  Grubb  vs.  Crane,  4  Scam.  153 ;  Ferguson  vs. 
SutpJien,  3  Gilm.  547 ;  Manchester  vs.  McKee,  4  Gilm.  511 ;  Boston  vs.  Nich- 
ols, 47  111.  353  ;  Douglas  vs.  Evans,  1  Overton,  82 ;  Ward  vs.  Jetcett,  Walker, 
Ch.  R.  45  ;  Atterhery  vs.  Knox,  8  Dana,  282 ;  Jackson  vs.  Iloneycut,  1  Over- 
ton, 30  ;  Piatt  vs.  Jadnon,  3  Black f.  205 ;  Fellows  vs.  Shelmire,  5  Blackf. 
48  ;  Jones  vs.  Beverly,  45  Ala.  161. 

(/)   Smith  vs.  Trim'dc,  27  ill.  152  ;  Uarmon  vs.  Campbell,  30  111.  25. 


TAKING    BILLS   AS   CONFESSED.  89 

Default  —  EflFect  of  a  Default. 

A  default  admits  tliat  which  is  properly  alleged  in  the  bill, 
but  nothing  further,  [y)  And  if  it  omits  to  state  the  complain- 
ant's claim  speciiically,  a  Unal  decree  cannot  be  rendered,  even 
after  a  pro  confesso  order,  without  proof.  (A)  It  is  error  to 
render  a  decree  for  more  than  is  claimed  in  the  bill,  {i)  A 
decree  cannot  be  taken  against  a  defendant  not  answering, 
unless  a  default  has  been  taken,  [j) 

If  the  complainant,  after  a  default,  amends  his  bill,  or  files  a 
supplemental  bill,  it  will  have  the  eifect  to  vacate  the  order 
of  default,  and  the  defendant  may  put  in  an  answer.  (A;) 

Section  eighteen  of  the  Statutes  of  Illinois,  relating  to  chancery- 
practice,  provides  that  "  where  a  bill  is  taken  for  confessed,  the 
court,  before  a  final  decree  is  made,  if  deemed  requisite,  may 
require  the  complainant  to  produce  documents  and  witnesses  to 
prove  the  allegations  of  his  bill,  or  may  examine  him  on  oath 
or  affirmation  touching  the  facts  therein  alleged.  Such  decree 
€hall  be  made  in  either  case,  as  the  court  shall  consider  equit- 
able and  proper."  {I)  The  case  need  not  be  referred  to  the 
master  for  proof,  {m) 

A  bill  cannot  be  taken  as  confessed  as  against  minors,  and  the 
evidence,  to  be  preserved  in  the  record,  must  warrant  a  decree 
against  them,  (w) 

{g)    Cronan  vs.  Frizell,  42  111.  319;  De  Leuw  vs.  Neeletj,  71  111.  473. 

{7i)  Piatt  vs.  Judson,  3  Blackf .  237 ;  Fellows  vs.  Shelmire,  5  Blackf .  48 , 
Cunninffham  vs.  Stelle,  1  Litt.  52  ;  see  Thomas  vs.  Morris,  57  111.  333. 

(i)  Carter  vs.  Lewis,  29  111.  503 ;  Mills  vs.  Heeney,  35  111.  174 ;  Pidgeon 
vs.  Trustees,  44  111.  501 ;  Beese  vs.  Becker,  51  111.  84 ;  Oicling  vs.  Luitgena, 
32  111.  23  ;  Martin  vs.  Hargardine,  46  111.  323. 

{j)  Shields  vs.  Bryant,  3  Bibb,  525 ;  Cannon  vs.  Watson,  1  How.  Miss. 
333. 

(A-)    Gihfion  vs.  Reese,  50  111.  383;  see  Black  vs.  Lusk,  G9  111.  70. 

(/(     Rev.  Stat.  (1874)  200;  Rev.  Stat.  (1877)  186. 

(m)  Carter  vs.  Lewis,  29  111.  503. 

{n)  McClay  vs.  Norris.  4  Gilm.  370;  White  vs.  Morrison,  11  111.  365; 
Preston  vs.  Ilodgen,  50  111.  60  ;  Willhiie  vs.  Pierce,  47  111.  413  ;  Nichols  vs. 
Thornton,  16  111.  113 ;  Bree  vs.  Bree,  51  111.  372 ;  Masterson  vs.  Wirwold. 
18  111.  48;  Moore  vs.  School  Tr.  19  111.  83  ;  Quigley  vs.  Roberts,  44  111.  503  ; 
Martin  vs.  Hargardine,  46  111.  322;  Ingersoll  vs.  Ligersoll,  42  Miss.  lol. 


90  TAKING    BILLS   AS   CONFESSED. 

Right  of  Defendant  after  Default  —  Setting  aside  Default. 

SECTION  II. 
RIGHT    OF    DEFENDANT    AFTER    DEFAULT. 

A  defendant,  being  in  court,  has  a  right,  in  a  case  where  the 
bill  is  taken  as  confessed,  to  appear  before  the  master  in  case 
of  a  reference,  if  he  thinks  proper ;  although  in  such  case  the 
practice  does  not  require  notice  to  him  to  appear  on  the  refer- 
ence. Or,  upon  the  report  of  the  master  being  made,  the 
defendant  may,  if  he  choose,  hie  exceptions  and  resist  its 
approval ;  {o)  or  he  may,  upon  a  writ  of  error,  insist  that  the 
averments  of  the  bill  do  not  justify  a  decree,  (p) 

SECTION  III. 

SETTING    ASIDE    A    DEFAULT. 

A  motion  to  set  aside  a  default,  for  not  filing  an  answer  in 
chancery,  should  be  based  upon  an  affidavit,  setting  forth 
clearly  and  specifically  the  reasons  for  setting  it  aside,  and  be 
accompanied  by  an  answer,  and  an  offer  to  file  the  same,  {q) 

An  application  to  set  aside  a  default  is  addressed  to  the  dis- 
cretion of  the  court,  and  an  appellate  court  rarely  reviews  the 
exercise  of  the  discretion,  and  then  only  to  prevent  great 
injustice,  (r) 

The  party  making  application  to  have  a  default  set  aside, 
must  support  it  by  an  affidavit,  showing  that  the  default  was 
taken  without  any  fault  or  negligence  on  his  part,  and  that 
there  is  merit  in  his  defense,  stating  what  such  defense  is,  so 

(o)    Moore  vs.  Titman,  33  111.  358. 

{p)  Gault  vs.  Hoagland,  25  111.  266  ;  Stephens  vs.  Bichnell  27  111.  444 ; 
Harman  \  3.  Campbell,  30  111.  25. 

(?)  Dunn  vs.  Keegin,  3  Scam.  292 ;  Oruhi  vs.  Crane,  4  Scam.  153  ;  Nor- 
ton vs.  Hixon,  25  111.  440. 

(r)  Bowman  vs.  Wood,  41  111.  203  ;  Bell  vs.  Mms,  51  111.  171 ;  Scales  vs. 
Labor, 51  111.  232  ;  see  further,  Puterbaugh's  Com.  Law  PI.  and  Pr.  809-810, 
and  authorities  there  cited  ;  Wooster  vs.  Woodhull,  1  Johns.  Ch.  539  ;  Parker 
vs.  Grant,  1  Jolins.  Ch.  G30  ;  Oioin  vs.  Ilnrris,  1  S.  &  M.  Ch.  528  ;  Graham 
vs.  Elmore,  Marring.  Ch.  205  ;  Russell  vs.  Wnite,  Id.  31 ;  Uart  vs.  Lindsay, 
Id.  72;   Terry  vs.  Eureka  College,  70  111.  236. 


TAKING  BILLS  AS   CONFESSED.  91 

Setting  aside  Default  —  Setting  aside  Decree,  etc. 

that  the  court  may  see  whether  it  is  sufficient,  {s)     The  motion 
should  be  made  at  the  term  at  which  the  default  is  entered,  {t) 

No.  13.    Ajfidavit  in  support  of  motion  to  set  aside  a  default. 

In  the Court. 

C.  D.  )  Term,  18  — . 

ats.    \  In  Chancery. 
A.  B.  ) 

C.  D.,  the  above  named  defendant,  makes  oath  and  says, 
that,  etc.  {Here  state  facts  showing  the  absence  of  negligence  in 
not  putting  in  oai  answer  in  apt  time.)  Alfiant  further  states, 
etc.  {Here  state  such  fads  as  show  a  meritorious  defense  to  the 
hill.)  Affiant,  therefore,  prays  that  the  default  heretofore 
entered  in  this  cause,  against  him,  may  be  set  aside;  and  that 
he  may  be  permitted  to  iile  his'  answer  herewith  exhibited,  and 
which  he  now  otiers  to  hie  in  this  cause.  C.  D. 

Subscribed  and  sworn,  etc. 

SECTION  IV. 

SETTING    ASroE    DECREE    WHEN    DEFENDANT    IS    NOT    PEKSONALLY 

NOTIFIED. 

The  nineteenth  section  of  the  Chancery  Act  of  Illinois,  pro- 
vides, that,  "when  any  final  decree  shall  be  entered  against  any 
defendant  who  shall  not  have  been  summoned,  or  been  served 
with  a  copy  of  the  bill,  or  received  the  notice  required  to  be 
sent  him  by  mail,  any  such  person,  his  heirs,  devisees,  executor 
or  administrator,  or  other  legal  representative,  as  the  case  may 
require,  shall,  within  one  year  after  notice  in  writing  given  him 
of  such  decree,  or  within  three  ^^ears  after  such  decree,  if  no 
such  notice  shall  have  been  given  as  aforesaid,  appear  in  open 
court,  and  petition  to  be  heard  touching  the  matter  of  such 
decree,  and  shall  pay  such  costs  as  the  court  shall  deem  reason- 
able in  that  behalf;  the  person  so  petitioning  may  appear  and 
answer  the  complainant's  bill,  and  thereupon  such  proceeding 

(s)  Rich  vs.  Hathoway,  18  111.  548  ;  Hunt  v.s.  Wallis,  6  Paige,  Cli.  11.  371 ; 
see  Stockton  vs.  Williams,  Harriug.  C'li.  241 ;  Ilart  vs.  Lindsay,  Id.  72. 

(t)  Messervey  vs.  Beckirith,  41  111.  452  ;  Cook  vs.  Wood,  24  111.  295  ;  Smith 
vs.  Wilson,  26  111.  186 ;  Scales  vs.  Labor.  51  111.  232. 


92  TAKING   BILLS  AS   CONFESSED. 

Setting  aside  Decree  when  Defendant  is  not  Personally  Notified. 

shall  be  had  as  if  the  defendant  had  appeared  in  due  season, 
and  no  decree  had  been  made.  And  if  it  shall  appear,  upon 
the  hearing,  that  such  decree  ought  not  to  have  been  made 
against  such  defendant,  the  same  may  be  set  aside,  altered  or 
amended  as  shall  ajDpear  just ;  otherwise  the  same  shall  be 
ordered  to  stand  confirmed  against  said  defendant.  The  decree 
shall,  after  three  years  from  the  making  thereof,  if  not  set 
aside  in  manner  aforesaid,  be  deemed  and  adjudged  confirmed 
against  such  defendant,  and  all  persons  claiming  under  him  by 
virtue  of  any  act  done  subsequent  to  the  commencement  of 
such  suit ;  and  at  the  end  of  the  said  three  years,  the  court 
may  make  such  further  order  in  the  premises  as  shall  be 
required  to  carry  the  same  into  effect."  (u) 

When  a  petition  is  filed  under  the  statute  referred  to,  the 
correct  practice  is,  to  let  the  forme}-  decree  stand  until  the  final 
hearing,  and  then  make  such  decree,  either  setting  aside  the 
former  one,  and  dismissing  the  bill,  or  confirming  or  modifying 
the  decree,  as  the  equities  of  the  case  may  require,  {v)  Such 
decrees  are  interlocutory  onlj.  {w)  It  would  be  a  technical 
error  to  vacate  the  decree,  upon  the  filing  of  the  petition,  and 
before  the  final  hearing ;  {x)  yet  if  by  so  doing  no  injury  is 
occasioned  to  any  one,  the  proceedings  will  not  be  reversed  and 
set  aside  for  that  reason ;  {y)  nor  can  such  irregularities  be 
attacked  collaterally,  {z) 

(w)  Rev.  Stat.  (1874)  200;  Rev.  Stat.  (1877)  186;  MaHin  vs.  Gilmore,  73 
111.  193. 

(i'j  Southern  Bank  vs.  Humphreys,  47  111.  227;  Lawrence  vs.  Lawrence, 
73  111.  577. 

(w)  Id. ;  Lyon  vs.  Bobbins,  46  111.  276  ;  Sale  vs.  FisJce,  54  111.  292 ;  Tomp- 
kins vs.  Wiltberger,  56  111.  385  ;  Hodgen  vs.  Quttery,  58  111.  431. 

(a;)  Buck  vs.  Beekley,  45  111.  100;  Mulford  vs.  Stahenback,  46  111.  803; 
Southern.  Bank  vs.  Rtimphi-eys,  47  111.  227. 

(y)  Mulford  vs.  Stahenback,  46  111.  303. 

(e)  Southern  Bank  vs.  llumphreys,  47  111.  227. 


TAKING   BILLS   AS   CONFESSED.  93 

Petition  to  set  aside  Decree  by  Defendant  not  Personally  Notified. 

No.  IJp.     Petition  to  set  aside  decree  hy  a  defendant  not 
jpersonally  notified. 

In  the Court. 


In  Chancery. 


Term,  18 


To  the  Honorable  ,  Judge  of  the  Court  of  the 

County  of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

The  petitioner,  C.  D.,  of,  etc.,  the  above  named  defendant, 
respectfully  represents  unto  your  honor,  that  on,  etc.,  the  above 
named  complainant,  A.  B.,  exhibited  his  bill  of  complaint 
against  the  petitioner  as  defendant,  in  this  honorable  court, 
in  this  suit,  and  on  making  affidavit  of  the  non-residence  of 
the  petitioner,  procured  publication  to  be  made  to  notify  him 
of  the  commencement  and   pendency  thereof;   and  that  on, 

etc.,  being  at  the term  of  this  lionorable  court,  a  jpro  con- 

fesso  decree  in  said  entitled  suit,  was  rendered  against  the 
petitioner,  as  by  the  record  and  proceedings  in  this  cause  will 
more  fully  and  at  large  appear.  And  the  petitioner  further 
represents  unto  your  honor,  that  he  has  not  been  summoned, 
or  served  with  a  copy  of  the  said  bill  of  complaint,  or  re- 
ceived the  notice  of  the  pendency  of  the  suit,  required  to  be 
sent  him  by  mail,  by  the  clerk  of  this  court,  and  has  received 
no  notice  in  writing  of  such  decree. 

The  petitioner,  therefore,  appears  in  this  honorable  court, 
and  asks  to  be  heard  touching  the  matters  of  such  decree, 
upon  such  reasonable  terms  as  to  the  court  may  seem  just, 
in  pursuance  of  the  statute  in  such  case  made  and  provided. 
And  the  petitioner  presents  herewith  his  answer  to  the  said 
bill  of  complaint,  and  asks  that  he  may  be  permitted  to  file  the 
same  in  said  cause,  and  that  upon  the  hearing,  the  court  will 
order  that  said  decree  be  set  aside,  altered  or  amended  as  to 
the  court  may  seem  just ;  and  that  the  court  will  grant  the 
petitioner  such  other  relief  in  the  premises  as  to  equity  shall 
appertain.  C.  D. 

State  of  Illinois,  ] 

County  of f 

C.  D.,  of,  etc.,  on  oath  states,  that  the  matters  set  forth  in 
the  foregoing  petition  are  true  in  substance  and  in  fact. 

C.  D. 
Subscribed,  etc. 


CHAPTER  YII. 

THE    DEFENSE    TO    A    SUIT. 

Section  1.  Proceedings  by  Defendant  Previous  to  Putting  in  his 
Answer. 

2.  The  Different  Sorts  of  Defense. 

3  Demurrer  to  a  Bill. 

4.  Pleas  to  a  Bill. 

5.  Answer  to  a  Bill. 
6  Disclaimer. 

SECTION  I. 
PROCEEDINGS  BY  DEFENDANT  PREVIOUS  TO  PUTTING  IN  HIS  ANSWER. 

Every  defendant  who  shall  be  summoned,  served  with  a 
copy  of  the  bill  or  petition,  or  notified  as  required  by  the 
statute,  shall  be  held  to  except,  demur,  plead  or  answer  on 
the  return  day  of  the  summons,  (a) 

The  term  to  except  as  used  in  the  statute  of  Illinois,  means 
to  object  to  the  proceedings  by  motion  or  suggestion.  Thus, 
where  the  complainant,  being  a  non-resident,  fails  to  give  secu- 
rity for  costs,  the  defendant  may  move  to  dismiss  for  that 
reason.  Other  cases  in  which  motions  would  be  proper  will 
naturally  suggest  themselves  to  the  reader. 

Cases  have  arisen  in  which  the  courts  liave  dismissed  a  bill 
on  motion,  for  want  of  equity,  (5)  but  such  practice  is  irregu- 
lar; yet,  if  acted  upon  by  the  court,  without  objection,  the 
motion  will  be  held  to  have  the  same  effect  as  a  demurrer,  {c) 

The  question  whether  a  bill  shows  equity  on  its  face  should 
be  raised  by  a  demurrer  to  the  bill,  and  not  by  motion ;  and 

(a)  Rev.  Stat.  (1874)  200;  Rev.  Stat.  (1877)  186. 

(b)  Edwards  vs.  Baird,  Breese  R.  70;  Richardson  vs.  Prevo,  Id.  216; 
Harris  vs.  Galbraith,  43  111.  309. 

(c)  Wicldeij  vs.  Thompson,  44  111.  9;  Town  of  Tamaroa  vs.  Normal  Uni- 
versitij,  54  111.  334. 


THE   DEFENSE   TO   A   SUIT.  95 


Exceptions  to  a  Bill  —  Form  of  Exceptions. 


on  objection  bj  the  complainant,  a  motion  entered   for  such 
purpose  will  be  stricken  from  the  file,  (d) 

Exceptions  to  hill  for  scandal  or  impertinence. — If  the  bill 
contains  any  scandalous  or  impertinent  matter,  the  defendant 
may,  before  putting  in  his  defense,  take  exceptions  to  the  bill ; 
to  the  end  that  the  objectionable  matter  may  be  expunged,  (e) 

Exceptions  to  a  bill  for  scandal  or  impertinence  are  to  be 
taken  in  the  same  manner  as  exceptions  to  an  answer  for 
insufficiency,  etc.,  and  may  be  submitted  to  in  like  manner 
and  within  the  same  time.  If  they  are  not  submitted  to,  the 
defendant  must  refer  them  in  the  same  manner,  or  they  wnll 
be  considered  as  abandoned.  (/") 

If  the  defendant  designs  to  except  to  the  bill,  he  must  do 
BO  before  putting  in  his  answer,  or  submitting  to  answer  by 
obtaining  an  order  for  further  time ;  as  by  answering  or  sub- 
mitting to  answer  the  bill,  he  waives  all  objections  to  it.  {(j) 

The  practice  upon  exceptions  to  bills  for  scandal  or  imperti- 
nence being  the  same  as  that  upon  exceptions  to  answers,  it 
will  be  sufficient  to  refer  the  reader  to  that  part  of  this  work 
where  exceptions  to  answers  are  spoken  of  (A) 

No.  15.     Exceptions  to  a  hill  for  impertinence  or  sca/ridal. 
In  the Court. 

Term,  18—. 

In  Chancery, 


Exceptions  taken  by  C.  D.,  defendant,  to  the  bill  of 
complaint  of  A.  B.,  complainant,  filed  against  him. 
First — For  that  the  allegations  in  the  7th,  8th,  9th,  10th 
and  11th  lines  of  the  4th  folio  of  the  said  bill  in  the  words 
following,  to-wit :    {Here  insert  the  matter  ohjected  to)  is  im- 
pertinent, and  ought  to  be  expunged. 

{d)  Toion  of  Tamaroa  vs.  Normal  University,  54  111.  334  ;  Wangelin  vs. 
Qoe,  50  111.  459. 

(«)  1  Barb.  Cli.  Pr.  101  ;  1  Dan.  Ch.  Pr.  451-3;  McConnell  vs.  Hollobu^h, 
11  111.  61 ;  Langdon  vs.  Pickering,  19  Maine,  214. 

(/)   1  Barb.  Ch.  Pr.  101. 

(g)    lb. ;  Anon.  3  Vea.Sr.  631 ;  Woodward  vs.  Astley,  Bund.  304. 

(Ji)    See  post.  Chap.  VIII. 


96,  THE   DEFENSE   TO   A   SUIT. 

Motions,  etc. 

Second  —  For  that  the  allegations  in  the  said  bill  commenc- 
ing with  the  word  "  the "  in  the  5th  line  of  the  8th  folio, 
and  ending  with  the  word  "you"  in  the  12th  line  of  the 
10th  folio  thereof,  are  scandalous  and  impertinent,  and  should 
be  expunged. 

Third  —  For  that,  etc.  {and  so  on.) 

In  all  which  particulars  this  defendant  humbly  insists  that 
the  complainant's  bill  of  complaint  is  irrelevant,  impertinent 
and  scandalous ;  wherefore,  this  defendant  excepts  thereto, 
and  prays  that  the  impertinent  and  scandal  of  the  said  bill 
of  complaint,  excepted  to  as  aforesaid,  uiQ,y  be  expunged  with 

costs.  , 

Solicitor  for  Defendant- 
Motion  for  iwoduction  of  papers. — The  court  only  orders 
the  production  of  books  and  papers  previous  to  the  final  hear- 
ing of  a  cause  upon  two  principles  —  security  pending  the 
litigation,  and  discovery  or  insj^ection  for  the  purpose  of  the 
suit.  (^) 

The  court  will,  upon  the  application  of  the  defendant,  before 
answer,  under  special  circumstances,  order  that  the  complain- 
ant should  not  compel  him  to  answer  until  within  a  stated 
time  after  the  production  of  certain  documents  set  forth  in  the 
bill,  when  it  appears  that  their  production  is  essential  to  enable 
the  defendant  to  put  in  his  answer,  {j) 

Motion  for  security  for  costs. — We  have  already  seen  that 
a  non-resident  complainant  must  give  security  for  costs  before 
filing  his  bill.  If  he  fails  to  do  so,  the  suit  will  be  dismissed 
on  motion,  supported  by  an  affidavit,  which  must  distinctly 
negative  the  fact  that  he  was  a  resident  at  the  time  the  suit 
was  commenced.  Qc) 

A  suit  instituted  by  two  complainants,  one  of  which  is  a 
resident,  will  not  be  dismissed  for  want  of  a  bond  for  costs.  (Z) 

{i)     Watts  vs.  Lawrence,  3  Paige,  Ch.  R.  159. 

{j)  Princess  of  Wales  vs.  Earl  of  Liverpool,  1  Swanst.  114;  1  Barb.  Cli. 
Pr.  101 ;  Jones  vs.  Lewis,  2  Sim.  &  Stu.  R.  243 ;  see  Cornell  vs.  Bostwick,  3 
Paige,  Ch.  R.  160. 

{k)  Leadbeater  vs.  Roth,  25  111.  587  ;  Buckland  vs.  Goddard,  36  111.  206; 
Bee  also  Ripley  vs.  Morris,.2  Gilm.  881 ;  Hickman  vs.  Haines,  5  Qilm.  20; 
Farnsworth  vs.  Agnew,  27  111.  42  ;  Robert  vs.  Fahs,  32  111.  474. 

(t)    Wood  vs.  Oosa,  24  111.  626. 


THE   DEFENSE   TO    A   SUIT.  97 

Different  sorts  of  Defenses. 

A  motion  to  dismiss  for  want  of  a  bond  for  costs  must  be 
made  at  the  earliest  stage  of  the  proceeding.  It  would  come 
too  late  after  a  demurrer,  (m)  or  a  plea  in  abatement,  {n) 

The  pendency  of  a  motion  for  security  for  costs  will  not 
necessarily  excuse  a  party  for  not  filing  an  answer  ;  nor  will 
such  motion  prevent  the  rendition  of  a  decree  pro  confesso.  {o) 


SECTION  II. 

THE    DIFFERENT    SORTS    OF    DEFENSES. 

The  defense  to  a  suit  in  equity  may  be  either  by  demurrer^, 
loj  plea,  by  answer,  or  by  disclaimer. 

1.  By  demurrer,  by  which  lie  appeals  to  the  judgment  of  the 
court,  whether  he  shall  be  compelled  to  answer  the  bill  or  not. 
This  species  of  defense  is  resorted  to  where  it  appears  upon  the 
face  of  the  bill  itself  that  there  is  no  equity  in  the  case,  on  the 
part  of  the  complainant. 

2.  By  plea,  by  which  he  shows  why  the  suit  should  be 
dismissed,  delayed  or  barred.  A  plea  sets  up  matter  of 
defense  not  appearing  in  the  bill. 

3.  By  answer,  controverting  the  case  stated  by  the  com- 
plainant, the  defendant  may  confess  and  avoid,  or  traverse  and 
deny,  the  several  parts  of  the  bill ;  or,  admitting  the  case  made 
by  the  bill,  may  submit  to  the  judgment  of  the  court  upon  it, 
or  upon  a  new  case  made  by  the  answer,  or  both. 

4.  By  a  disclaimer,  the  defendant  may  at  once  terminate 
the  suit  by  disclaiming  all  right  or  interest  in  the  matter  sought 
by  the  bill. 

5.  By  demurrer,  plea,  answer  and  disclaimer,  or  by  two  or 
more  of  them ;  provided  each  relates  to  a  separate  and  distinct 
part  of  the  bill. 

(m)  The  People  vs.  Cloud,  50  111.  439. 

(ti)  Randolph  vs.  Emariclc,  13  111.  344 ;  see  farther,  Frasure  vs.  Zimmerly, 
25  111.  202  ;  Dwnni7ig  vs.  Dunning,  37  111.  316;  St.  Louis,  A.  &  T.  H.  B.B. 
Co.  vs.  South,  43  111.  176. 

ip)    Hamilton  vs.  Bunn,  22  111.  259. 
7 


98  THE   DEFENSE   TO   A   SUIT. 

Demurrer  to  a  Bill  —  Ita  Nature  and  Uses. 

A  cross  bill  may  also  be  considered  a  species  of  defense,  (j?) 
The  above  is  tlie  general  order  of  pleading  to  be  pursued  by 
the  defendant.     All  pleas  of  a  dilatory  character,  and  objec 
tions  of  that  nature,  must  be  interposed  at  the  earliest  oppor- 
tunity, {q) 


SECTION  III. 
DEMURKEE    TO    A    BILL. 

Its  nature  and  uses. — Whenever  any  ground  of  defense  is 
apparent  upon  the  face  of  the  bill,  either  from  matters  therein 
stated,  or  from  defects  in  its  frame,  or  in  the  case  made  by  it,  the 
proper  mode  of  defense  is  by  demurrer,  {r)  The  word  demur- 
rer comes,  as  Lord  Coke  has  said,  from  the  Latin  word  demo- 
rari,  to  abide ;  and,  therefore,  he  that  demurs  in  law,  is  said  to 
abide  in  law.  He  will  go  no  further  until  the  court  has  de- 
cided whether  the  other  party  has  shown  sufficient  matter  in 
point  of  law  to  maintain  his  suit,  (s) 

A  demurrer  is  in  bar  of  the  relief  sought,  and  it  proceeds 
upon  the  ground  that,  admitting  the  fact  stated  in  the  bill  to 
be  true,  the  complainant  is  not  entitled  to  the  relief  he  seeks. 
It  is  always  founded  upon  some  strong  point  of  law,  going  to 
the  absolute  denial  of  the  relief  souglit ;  but  defects  in  sub- 
stance are  not  supplied  or  aided  by  it,  nor  defective  statements 
of  title  or  claims  to  relief  cured  by  it.     The  demurrer  only 

(p)  Onlatian  vs.  Erwin,  Hopk.  Cli.  R.  48,  58 ;  1  Barb.  Cli.  Pr.  105. 

(g)  Puterbaugli's  Com.  Law  PL  and  Pr.  144-145,  and  cases  there  cited ; 
Conley  vs.  Oood,  Breese,  135  ;  Duncan  vs.  Charles,  4  Scam.  561 ;  Wilson  va. 
NettUton,  12  111.  61 ;  Peoples  vs.  Peoples,  19  111.  270 ;  Oilmore  vs.  Noicland, 
26  111.  200 ;  Archibald  vs.  Argall,  53  111.  307 ;  Jajnes  vs.  Morgan,  36  Conn. 
848 ;  Bowman  vs.  McLaughlin,  58  Maine,  299  ;  Green  vs.  Craig,  47  Mo.  90 ; 
Brown  vs.  Powell,  45  Ala.  149. 

(r)  McCloskey  vs.  McCormick,  44  111.  336;  Wangelin  vs.  Goe,  50  111.  459; 
Story's  Eq.  PI.  g  441 ;  2  Barb.  Cb.  Pr.  105 ;  Mitf.  Eq.  PI.  107 ;  Beard  vs. 
Fowler,  2  Bond,  13 ;  Gallaher  vs.  Roberts,  1  Wash.  C.  C.  320. 

(s)  Co.  Litt.  71,  note  b;  Coop.  Eq.  PI.  110;  Black.  Com.  314;  Story's  Eq. 
PI.  §  441 ;   Verplank  vs.  Caines,  1  Johns.  Ch.  R.  57. 


THE   DEFENSE   TO   A   SUIT.  99 

Demurrer  to  a  Bill  —  Its  Nature  and  Uses. 

admits  that  which  is  well  stated  or  pleaded,  {t)  It  does  not 
admit  any  matters  of  la\v  which  may  be  suggested  in  the  bill, 
or  inferred  from  the  facts  stated  in  it ;  nor  any  fact  that  is  not 
specifically  charged,  [u) 

A  demurrer  may  be  sustained  on  the  ground  of  the  staleness 
of  the  claim  set  up  in  a  bill,  (v)  and  lapse  of  time  sufficient  to 
create  a  bar  under  the  statute  of  limitations  unaccounted  for 
by  the  bill,  may  be  taken  advantage  of  by  demurrer,  {w)  It  is 
otherwise  if  the  laches  are  accounted  for  by  the  bill,  {x) 

A  demm-rer  may  be  to  the  whole  bill,  or  to  a  part  only  of 
the  bill ;  and  the  defendant  may,  therefore,  demm*  as  to  part, 
plead  as  to  another  part,  and  answer  as  to  the  residue  of  the 
bill.  But  each  of  these  modes  of  defense  must  be  actually 
applied  to  different  and  distinct  parts  of  the  bill,  and  so  applied 
that  each  will  be  consistent  with  the  other ;  so  that  one  will 
not  overrule  the  other,  {y)  Thus,  for  example,  if  there  is  a 
demurrer  to  the  whole  bill,  an  answer  to  a  part  thereof  is  in- 
consistent, and  the  demurrer  will  be  overruled,  {z)  For  the 
same  reason,  if  there  is  a  demurrer  to  a  part  of  a  bill,  there 

{f)  Stowe  vs.  Russell,  36  111.  18  ;  Mills  vs.  Brown,  2  Scam.  549  ;  Moore  vs. 
Iloisington,  31  111.  243  ;  Verplank  vs.  Gaines,  1  Johns.  Ch.  R.  57  ;  WasJiing- 
ton  etc.  Road  vs.  State,  19  Md.  239  ;  Newell  vs.  Supervisors  Bureau  Co.  36 
111.  253  Baker  vs.  Booker,  6  Price,  381;  Chotean  vs.  Rice,  1  Minn.  106; 
Harr.  Ch.  R.  308;  Barton's  Suit  in  Eq.  96;  1  Dan.  Ch.  Pr.  601;  Diniliam  vs. 
Ilnde  Park,  75  111.  371:  Rohy  vs.  Cossitt,  78  111.  638. 

(»)  Sloice  vs.  Russell,  36  111.  18;  Green  vs.  Dodge,  6  Ham.  80;  Smith  vs. 
Ilnirtf,  15  Iowa,  385;  Coop.  Eq.  PL  111;  Williams  vs.  Steward,  3  Meriv. 
472,  492;  Enrle  vs.  Holt,  5  Hare,  180;  Baker  vs.  Booker,  6  Price,  381; 
IValton  vs.  Westwood,  73  111.  125;  Judson  vs.  Stephens,  75  111.  225. 

(»)    Gopen  vs.  FlesTier,  1  Bond,  440. 

{w)  Rhode  Island  vs.  Massachusetts,  15  Pet.  223  ;  Maxwell  vs.  Kennedy, 
8  How.  U.  S.  210  ;   Wisner  vs.  Barnet,  4  Wash.  C.  C.  631. 

(x)    lb. 

(1/)  Coop.  Eq.  PL  112,113;  Tidd  vs.  GUii'e,  2  Dick.  712;  Potarlington 
vs.  Soulby,  6  Sim.  356 ;  Lord  Red.  214 ;  Livingston  vs.  Story,  9  Pet.  632 , 
Spofford  vs.  Manning,  6  Paige,  Ch.  R.  383  ;  Pierpont  vs.  Fowle,  2  Woodbury 
&  Minot's  R.  23. 

(s)  Brill  vs.  Stiles,  35  111.  305  ;  Davies  vs.  Davies,  2  Keen,  R.  538 ;  Clark 
vs.  Phelps,  6  Johns.  Ch.  R.  214 ;  Heath  vs.  Erie  R.  R.  Co.  8  Blatchf .  347 , 
Miller  vs.  Furse,  1  Bailey's  Ch.  R.  187. 


100  THE  DEFENSE   TO  A  SUIT. 

Demurrer  to  a  Bill  —  Its  Nature  and  Uses. 

cannot  be  a  plea  or  answer  to  the  same  part,  without  over- 
ruling the  demurrer.  («)  After  answer,  it  is  too  late  to  demur, 
unless  the  answer  is  first  withdrawn  by  leave  of  court,  (h) 

It  is  a  rule  that  a  plea,  or  answer,  and  demurrer  to  the  same 
matter,  cannot  stand  together,  and  the  plea  or  answer  over- 
rules the  demurrer,  (c)  But  the  37th  rule  of  the  Rules  of 
Practice  for  the  Courts  of  Equity  of  the  United  States,  revised 
and  corrected  at  the  December  term,  A.  D.  1870,  has  abolished 
this  doctrine.  It. declares  that  "  no  demurrer  or  plea  shall  be 
held  bad  and  overruled  upon  argument,  only  because  the 
answer  of  the  defendant  may  extend  to  some  part  of  the  same 
matter,  as  may  be  covered  by  such  demurrer  or  plea."  The 
same  rule  exists  in  the  English  chancery  orders  of  1841.  {d) 

If  a  demurrer  is  too  general,  that  is,  if  it  covers,  or  is  applied 
to  the  whole  bill,  when  it  is  good  to  a  part  only  ;  or  if  it  is  a 
demurrer  to  a  part  only,  but  is  not  good  to  the  full  extent 
which  it  covers,  but  is  so  only  to  a  part,  it  will  be  overruled  ;  {e) 
for  it  is  a  general  rule,  that  a  demurrer  cannot  be  good  as  to  a 
part  which  it  covers,  and  bad  as  to  the  rest ;  and,  therefore,  it 
must  stand  or  tall  altogether,  {f)  If  the  court  sustains  a 
demurrer  in  part,  and  overrules  it  as  to  the  residue,  the  com- 
plainant, by  amending  his  bill,  and  the  defendant,  by  answer- 
ing the  amended  bill,  waive  the  irregularity,  {g) 

{a)  Story's  Eq.  PI.  §  443  ;  Jones  vs.  Strafford,  3  P.  Wms.  E.  80  ;  Bonner 
vs.  Fortescue,  2  Atk.  R.  282  ;  Kuyper  vs  Ref.  Dutch  Oh.  6  Paige,  Cli.  R.  570. 

[b)  Brill  vs.  Stiles,  35  111.  305. 

(c)  Clarke  vs.  Phelps,  6  Johns.  Cli.  R.  214  ;  Chase's  Case,  1  Bland,  206 ; 
Robertson  vs.  Bingley,  1  M'C.  Ch.  333  ;  Saxon  vs.  Barksdale,  4  Dessau.  522  ; 
Baines  vs.  MeOee,  1  S.  «&  M.  208  ;  Bank  of  Muskingum  vs.  Carpenter,  Wright, 
729. 

{d)    Story's  Eq.  PI.  §  443,  n.  2 ;  see  DeU  vs.  Hale,  2  Younge  &  Coll.  New  R.  1. 

(e)  Burling  vs.  Hammer,  20  N.  J.  Eq.  R.  220  ;  Brovonlee  vs.  Lockwood, 
20  N.  J.  Eq.  R.  239  ;  3  Green's  N.  J.  R.  270  ;  Banta  vs.  Moore,  2  McCarter's 
N.  J.  R.  97;  Hawkins  vs.  Clement,  15  Mich.  511 ;  Treadicell  v.s.  Brown,  44 
N.  H.  Rep.  551  ;  Brown  vs.  Hogle,  30  111.  119  ;  Blount  vs.  Garen,  3  Hey.  88; 
Fancher  vs.  Bigraham,  6  Blaclif.  139 ;  Heath  vs.  Ei-ie  R.  R.  Co.  8  Blatchf. 
C.  C.  347. 

(/)  Story's  Eq.  PI.  ^443;  Metcalf  vs.  Hervey,  1  Ves.  248;  Higginbotham 
vs.  Burruet,  5  Johns.  Ch.  136  ;  Todd  vs.  Oee,  17  Ves.  273 ;  Knight  vs.  Moseley, 
Aml^l.  17G;   Wynne  vs.  Jackson,  1  McClell.  &  Younge,  35. 

(g)    Marshall  vs.  Vicksburg,  15  Wall.  149. 


THE   DEFENSE   TO  A  SUIT.  101 

Demurrer  to  a  Bill  —  Its  Nature  and  Uses. 

It  was  formerly  the  rule,  that  if  a  demurrer  does  not  cover 
80  much  of  the  bill,  as  it  might  by  law  have  extended  to,  it 
would  be  held  bad  ;  {/i)  but  this  doctrine  is,  liowever,  now 
changed  by  the  orders  of  the  English  court  of  chancery,  (^) 
and  the  rules  of  the  supreme  court  of  the  United  States,  (j) 
which  provide,  "  That  no  demurrer  or  plea  shall  be  held  bad 
and  overruled  upon  argument,  only  because  such  demurrer  or 
plea  shall  not  cover  so  much  of  the  bill  as  it  might  by  law  have 
extended  to." 

A  demurrer  may  be  put  in,  and  several  canses  assigned  ;  and 
if  one  cause  is  good  to  the  w4iole  extent  of  the  demurrer,  and 
another  is  bad,  the  demurrer  will  be  sustained  ;  for  if  both  were 
bad,  the  defendant  may,  ore  tenus,  assign  new  causes  of  demur- 
rer at  the  argument  to  matters  of  substance,  although  not  to 
matters  of  form ;  so  that  any  one  good  cause,  existing  of  record, 
or  otherwise  assigned,  will  do.  {/c) 

When  there  are  several  defendants,  if  they  all  join  in  one 
demurrer  to  a  bill,  the  demurrer  may  be  good,  and  be  sus- 
tained, as  to  one  of  the  defendants,  and  be  bad,  and  overruled 
as  to  the  others ;  for  the  defense  may  be  good  to  one  person, 
and  wholly  inapplicable  to  another.  [1) 

When  a  bill  in  equity  sets  forth  various  claims  to  the  inter- 
position of  the  court,  and  the  defendant  iiles  a  general  demur- 
rer to  the  whole  bill,  it  must  be  overruled  if  any  of  the  claims 
afford  a  proper  case  for  the  jurisdiction  of  the  court.  (?/?,)  The 
proper  course  is  to  demur  to  such  claims  as  are  entitled  to 
no  relief,  and  answer  the  balance,  (n) 

(/i)    Story's  Eq.  PL  §  443 ;  Dawson  vs.  Sadler,  1  Sim.  &  Stu.  R.  537, 542. 

(i)     1  Craig  &  Phill.  R.  379. 

ij)    Rule  36  of  the  Rules  of  Pr.  C.  E.  of  U.  S.  1870. 

{k)  Stoiy's  Eq.  PI.  §  443  ;  Barton's  Suit  in  Eq.  96  ;  Coop.  Eq.  PI.  112,  113 ; 
Lord  Red.  217  ;  Jo7ies  vs.  Frost,  Jac.  468. 

(I)  Story's  Eq.  PL  §  445  ;  Coop.  Eq.  PL  113  ;  jfai/or  of  London  vs.  Lecy, 
8  Ves.  R.  403, 404 ;  Barstoio  vs.  Smitli,  Walk.  Cli.  R.  394. 

{m)  Brown  vs.  Hogle,  30  111.  119  ;  Livingston  vs.  Story,  9  Pet.  632  ;  Brock- 
way  vs.  Copp,  3  Paige,  Ch.  R.  539 ;  Fancher  vs.  Ingraharn,,  6  Blackf.  139 ; 
Carter  vs.  Longworth,  4ilia,m.  384 ;  Higginbotham  vs.  Burnet,  5  Johns.  Ch.  R. 
184 ;  Holledan  vs.  Johnson,  2  Geo.  Decis.  146  ;  Origgs  vs.  Thompson,  1  Geo. 
Decis.  146. 

(ti)     Varick  vs.  Smith,  5  Paige,  Ch.  R.  137. 


102  THE  DEFENSE   TO  A  SUIT. 

Demurrer  to  a  Bill  —  Where  it  will  Lie. 

Where  a  demurrer  will  lie. — If  a  bill  shows  upon  its  face 
that  there  is  a  want  of  siifhcient  parties,  (o)  or  a  misjoinder  of 
parties,  (j:;)  a  demurrer  will  lie ;  but  it  must  point  out  who  are 
the  proper  parties,  {g) 

If  the  want  of  jurisdiction,  (r)  or  the  bar  of  the  statute  ol 
limitations,  or  defenses  of  a  kindred  character,  {s)  or  the  statute 
of  frauds  (^)  appear  upon  the  face  of  the  bill,  it  will  be  obnox- 
ious to  a  demurrer,  unless  circumstances  are  alleged  taking  the 
case  out  of  those  statutes,  {u) 

A  demurrer  will  also  lie  where  the  bill  is  multifarious ;  {v) 
or  shows  upon  its  face  that  the  complainant  has  an  adequate 

((?)  Spear  vs.  Campbell,  4  Scam.  424 ;  Prentice  vs.  Kimball,  19  111.  330  ; 
Lowry  vs.  Harris,  12  Minn.  255 ;  Walford  vs.  Phelps,  2  J.  J.  Marsh.  31 ; 
Mitchell  vs.  Lenox,  2  Paige,  Ch.  R.  281;  Robinson  vs.  Smith,  3  Paige,  Ch. 
R.  222 ;  Story's  Eq.  PL  §  541 ;  see  Hand  vs.  Dexter,  41  Geo.  454. 

{p)  Berger  vs.  Potter,  %%  111.  66;  Christian  vs.  Crocker,  25  Ark.  327; 
Meiick  vs.  Melick,  2  Green  N.  J.  R.  156 ;  White  vs.  Delschneider,  1  Oregon 
R.  254. 

{q)  Robinson  vs.  Smith,  3  Paige,  Ch.  R.  222;  Dais  vs.  Bouchaud,  10 
Paige,  Ch.  R.  445  ;  Story's  Eq.  PL  §  543;  Lord  Red.  108;  Moore  vs.  Arm^ 
strong,  9  Porter,  697;  Smith  vs.  Kornegay,  1  Jones'  N.  C.  Eq.  R.  40. 

(r)  Smith  vs.  Morehead,  6  Jones'  N.  C.  Eq.  360 ;  C.  &  N.  W.  R.  R.  Co.  vs. 
Nichols,  57  III.  464 ;   Varick  vs.  Dodge,  9  Paige,  Ch.  R.  149. 

(s)  Henry  Co.  vs.  Winnebago  etc.  52  111.  299 ;  Id.  52  111.  454 ;  Hovenden 
vs.  Annesley,  2  Sch.  &  Lef.  637  ;  Hardy  vs.  Reeves,  4  Ves.  R.  479  ;  Foster  vs. 
Hodgson,  19  Ves.  R.  180 ;  Surtser  vs.  Skiles,  3  Gilm.  529  ;  Denny  vs.  Oilman, 
26  Maine,  149;  School  Trustees  vs.  Wright,  12  111.  432;  Coster  vs.  Murray, 
5  Johns.  Ch.  R.  522 ;  Hook  vs.  Whitlock,  7  Paige,  Ch.  R.  373 ;  Maxwell  vs. 
Kennedy,  8  How.  U.  S.  222 ;   Wisner  vs.  Burnet,  4  Wash.  C.  C.  631. 

(t)  School  Trustees  vs.  Wright,  12  111.  432 ;  Surtser  vs.  Skiles,  3  Gilm.  529 ; 
but  see  Lear  vs.  Chouteau,  23  111.  39 ;  Hull  vs.  Peer,  27  111.  312. 

(u)  Henry  Co.  vs.  Winnebago  Drain  Co.  52  111.  454  ;  Story's  Eq.  PL  g  503, 
760,  751. 

(v)  Henderson  vs.  Cummings,  44  111.  325;  Burnett  vs.. Lester  et  al.  53 
111.  825 ;  Wilson  vs.  Wilson,  23  Md.  162 ;  Waller  vs.  Taylor,  42  Ala.  297  • 
Supervisors  etc.  vs.  State's  Attorney,  31  111.  68 ;  Darling  vs.  Hammer,  20 
N.  J.  Eq.  R.  220;  Oliver  vs.  Piatt,  3  How.  U.  S.  333;  Many  vs.  Beekman 
Iron  Co.  9  Paige,  Ch.  R.  188;  Luckett  vs.  White,  10  Gill  &  J.  R.  430;  Thur- 
man  vs.  Shelton,  10  Yerg.  383;  Bufnlom  vs.  Bafalow,  2  Ired.  Ch.  R.  113; 
Darcey  vs.  Lake,  46  Miss.  109;  AtwUl  vs.  Ferretf,  2  Bhitchf.  C.  C.  39;  Grain 
vs.  Kennedy,  85  111.  340 


THE   DEFENSE   TO  A  SUIT.  103 

Demurrer  to  a  Bill —  Where  it  will  Lie. 

remedy  at  law ;  {w)  except  in  cases  of  fraud  {x)  and  trusts  (y) ; 
in  which  courts  of  equity  retain  jurisdiction,  notwithstanding 
courts  of  law  may  also  have  jurisdiction. 

A  demurrer  will  also  be  sustained  where  the  bill  shows  a 
■want  of  title  or  interest  in  the  complainant  to  the  thing 
demanded  ;  {z)  and  where  a  party,  having  no  interest  in  the 
controversy,  is  improperly  joined  as  a  party  complainant,  {a) 
and  where  the  bill  shows  no  equity  on  its  face,  (b)  or  is 
brought  for  a  part  of  a  matter  only,  (c)  or  fails  to  show  some 
claim  or  interest  in  the  defendant,  {d) 

The  question  whether  a  bill  shows  equity  on  its  face  should 
be  raised  by  demurrer,  and  not  by  motion,  {e)  But  in  some 
cases  where  no  objections  were  interposed  as  to  manner  of 
raising  the  objection,  the  bill  has  been  dismissed  upon  mo- 
tion, {f)  But  if  the  complainant  objects  to  the  raising  of  the 
question  in  that  manner,  the  motion  will  not  be  entertained, 

{w)  Wangelin  vs.  Ooe,  50  111.  459 ;  Wylder  vs.  Crane,  53  111.  490 ;  The 
People  vs.  City  of  Oalesburg,  48  111.  485 ;  Lynch  vs.  Willard,  6  Johns.  Ch.  R. 
342 ;  Bottorf  vs.  Conner,  1  Blackf.  287 ;  Foster  vs.  Swasey,  2  W.  &  M.  C.  C. 
217  ;  Tarbell  vs.  Bowman,  103  Mass.  341 ;  Scruggs  vs.  Blair,  44  Miss.  406  ; 
Jet^ne  vs.  Osgood,  57  III.  340. 

(a;)  Bahcock  vs.  McCamant,  53  111.  215;  Ogden  vs.  Larrabee,  57  111.  389 ; 
Truett  vs.  Warnwright,  4  Gilm.  418 ;  Kennedy  vs.  Northup,  15  111.  148. 

(y)    Coates  vs.  Woodworth,  13  111.  654 ;  Norton  vs.  Hixon,  25  111.  440. 

(z)  Bamere  vs.  Rawlins,  Finch,  36  ;  Newman  vs.  Holder,  Id. ;  Stooke  vs. 
Vincent,  1  Collyer,  527  ;  Story's  Eq.  PI.  §  503. 

(a)  Plummer  vs.  May,  1  Vern.  426 ;  Bineley  vs.  Dineley,  2  Atk.  394  ; 
How  vs.  Best,  5  filad.  19 ;  Welf.  Eq.  PI.  283. 

(6)  President  etc.  vs.  8.  111.  N.  Uni.  54  111.  334 ;  Calhoun  vs.  Powell,  42  Ala. 
645;  Winkler  vs.  Winkler,  4S)  111.  179;  Harris  vs.  Galbraith,  43  111.  309; 
Moore  vs.  Armstrong,  9  Porter,  697. 

(c)     Hinde,  Ch.  Pr.  157  ;  Lord  Red.  16  ;  Story's  Eq.  PI.  §  287. 

{d)  Wych  vs.  Meal,  3  P.  Wms.  R.  311 ;  Stewart  vs.  East  India  Co.  2  Vern. 
380 ;  Attorney  General  vs.  Bradford  Canal  Co.  3  Eq.  Cas.  Abr.  78. 

(e)  Town  of  Tamoroa  vs.  Trustees  etc.  54  111.  334  ;  Winkler  vs.  Winkler  40 
111.  179  ;  Harris  vs.  Galbraith,  43  111.  309  ;  Brill  vs.  Stiles,  35  ill.  30-^) ;  Cal- 
houn vs.  Powell,  42  Ala.  645  ;  Moore  vs.  Armstrong,  9  Porter,  697. 

(/)  Thomas  etc.  vs.  Adams,  30  111.  37 ;  Edwards  vs.  Beaird,  Breese,  70 ; 
Fisher  vs.  Stone,  3  Scam.  68 ;  Greathouse  vs.  Kipp,  Id.  371 ;  State  Bank  vs. 
Stanton,  2  Gilm.  352;  Puterbaugh  vs.  Elliott,  22  111.  157. 


104  THE   DEFENSE   TO  A  SUIT. 

Demurrer  to  Bill  —  General,  Special,  etc. 

and  if  filed  will  be  stricken  off.     If  no   objections  are  inter- 
posed the  motion  is  treated  the  same  as  a  demurrer,  ig) 
Demmrers  are  either  general  or  special. 

General  demurrer. —  Demurrers  are  general  when  no  parti- 
-cular  cause  is  assigned,  except  the  usual  formulary  that  there 
is  no  equity  in  the  bill.  (A) 

Sjpecial  demurrer. —  Demurrers  are  special,  when  the  par- 
ticular defects  or  objections  to  a  bill  are  pointed  out.  A 
special  demurrer  is  indispensable,  where  the  objection  is  to 
the  defects  of  the  bill  in  point  of  form,  (z)  The  objections 
pointed  out  should  not  be  argumentative,  but  must  be  set  down 
with  reasonable  certainty  and  dh-ectness.  {j) 

Where  a  defendant,  to  a  bill  praying  relief,  demurs  to  the  dis- 
covery only,  he  cannot  do  so  under  a  general  demurrer  for  want 
of  equity,  but  must  make  it  a  subject  of  special  demurrer,  (k) 

Several  causes  of  demurrer. —  A  defendant  is  not  limited  to 
show  one  cause  of  demurrer  only.  He  may  assign  as  many 
causes  as  he  pleases,  either  to  the  whole  bill,  or  to  each  part 
of  the  bill  demurred  to ;  and  if  any  one  of  the  causes  assigned 
holds  good,  the  demurrer  will  be  allowed.  (?) 

Separate  demurrers. —  A  defendant  may  also  put  in  separate 
demurrers  to  separate  and  distinct  parts  of  a  bill,  for  separate 

{g)  Town  of  Tamaroa  vs.  Trustees  etc.  54  111.  334 ;  Vieley  vs.  Thompson, 
44  111.  9. 

(/i)  Barton's  Suit  in  Eq.  107,  108  ;  Story's  Eq.  PI.  §455;  Harrington  vs. 
McLean,  1  Phillip's  N.  C.  Eq.  258. 

(^■)  McCloskey  vs.  McCormick,  44  111.  336 ;  Pogue  vs.  Clark,  25  111.  351 ; 
McElwain  vs.  Willis,  3  Paige,  Cli.  R.  505  ;  Forbes  vs.  Whitlock,  3  Edw.  Ch. 
R.  446 ;  N'ash  vs.  Smith,  6  Conn.  R.  421 ;  Marsh  vs.  Marsh,  1  Green,  N.  J. 
391. 

(j)    Story's  Eq.  PI.  §  455  ;  Barton's  Suit  in  Eq.  97  ;  Mitf.  Eq.  PL  213,  214. 

(k)    Whittingham  vs.  Burgoyne,  3  Anat.  900  ;  1  Barb.  Oh.  Pr.  107. 

[l)  1  Barb.  Ch.  Pr.  107  ;  Ilarrison  vs.  Hogg,  2  Vcs.  Jr.  333  ;  Jones  vs. 
Frost,  d  Mad.  1. 


THE   DEFENSE   TO  A  SUIT.  105 

Demurrer  to  Bill  —  Speaking  Demurrer  —  Demurrer  ore  tenua. 

and  distinct  causes  ;  (m)  for  the  same  grounds  of  demurrer,  fre- 
quently, will  not  aj^ply  to  different  y^arts  of  a  bill,  though  the 
whole  may  be  liable  to  demurrer;  and  in  such  a  case  one 
demurrer  may  be  overruled,  upon  argument,  another  allowed,  {n) 

Speaking  deinarrer. —  Care  must  be  taken,  in  framing  a 
demuri-er,  that  it  be  made  to  rely  only  upon  the  facts  stated 
in  the  bill ;  otherwise  it  will  be  what  is  termed  a  speaking 
demurrer,  and  M'ill  be  overruled,  (o)  A  S23eaking  demurrer  is 
one  which  introduces  some  new  fact  or  averment  which  is 
necessary  to  support  the  demurrer,  and  which  does  not  dis- 
tinctly appear  upon  the  face  of  the  bill.  (j^.>) 

Demurrer  ore  tenus. — Where  a  demurrer  is  put  into  the 
whole  bill,  for  causes  assigned  on  the  record,  if  those  causes  are 
overruled,  the  defendant  will  be  allowed  to  assign  other  causes 
of  demurrer,  ore  Unus^  at  the  argument.  (^)  But  in  such  a  case, 
if  tlie  demurrer,  ore  tsnus,  is  allowed,  the  defendant  is  not 
entitled  to  his  costs,  even  though  he  may  not  be  obliged  to 
pay  costs  on  the  demurrer  on  record,  which  has  been  over- 
ruled, {r)  But  a  demurrer,  ore  tenus,  will  never  be  allowed, 
unless  there  is  a  demurrer  on  record ;  for  if  there  is  a  plea 
on  record,  and  that  is  disallowed,  a  demurrer,  ore  tenus,  will 
also  be  disallowed,  (.s)     Whenever  a  demurrer,  ore  tenus,  is 

(m)  Mitf.  Eq.  PI.  174 ;  1  Barb.  Ch.  Pr.  107 ;  North  vs.  Earl  of  Strafford, 
3  P.  Wms.  148 ;  Bdberdean  vs.  Rous,  1  Atk.  544. 

(?i)   1  Barb.  Cb.  Pr.  107;  North  vs.  Earl  of  Strafford,  3  P.  Wms.  148. 

(o)  Broicnsword  vs.  Edwards,  2  Yea.  245  ;  Tallmadge  vs.  Lovett,  3  Edw. 
Ch.  563  ;  Lajnb  vs.  Starr,  1  Deady,  350. 

(p)  1  Barb.  Ch.  Pr.  107;  Brooks  vs.  Gibbons,  4  Paige,  Ch.  R.  374;  Bavies 
vs.  Williams,  1  Sim.  5 ;  Cawthorn  vs.  Chalie,  2  Sim.  &  Stu.  127  ;  Kuypers  vs. 
Butch  Ref  Ch.  6  Paige,  Ch.  R.  570  ;  Story's  Eq.  PL  §  448  ;  Coop.  Eq.  PI.  111. 

{q)  Story's  Eq.  PI.  §464;  Coop.  Eq.  PI.  112;  1  Barb.  Ch.  Pr.  108;  Cart- 
wright  vs.  Ghreen,  8  Ves.  409 ;  Beame's  Ord.  in  Ch.  174  ;  Brickerhoff  v.-^.  Brown, 
6  Johns.  Ch.  149 ;  Vanhorn  vs.  Buckworth,  7  Ired.  Eq.  R.  261 ;  Caldiodl  vs. 
Blackwood,  1  Jones'  N.  C.  Eq.  274. 

(r)    lb.,  lb. 

{s)  Coop.  Eq.  PI.  112  ;  Bundant  vs.  Redman,  1  Vern.  78 ;  Attornc!/  Gene- 
ral vs.  Broicn,  1  Swanst.  288  ;  Hook  vs.  Borman,  1  Sim.  &  Stu.  227 ;  Story's 
Eq.  PI.  §  443,  464. 


106  TKE    DEFENSE   TO  A  SUIT. 

Demurrer  to  Bill  —  Demurrer  coupled  with  Answer. 

pennitted,  it  must  be  for  some  cause  wliich  covers  the  whole 
extent  of  the  demurrer,  {t)  And  it  has  been  held  that  the  right 
to  put  in  such  a  demurrer,  ore  tenus,  applies  only  to  cases 
where  the  demurrer  is  to  the  whole  bill,  and  not  to  cases 
where  it  is  to  a  part  only,  notwithstanding  it  is  coextensive 
with  the  demurrer  to  that  part,  {u) 

Demurrer  coupled  with  an  answer. — Where  a  demurrer  is  to 
part  of  the  bill  only,  the  answer  to  the  remainder  usually  fol- 
lows the  statement  of  the  cause  of  demurrer,  and  the  demand 
of  judgment  whether  the  defendant  ought  to  be  held  to  make 
further  or  other  answer.  But  as  the  demurrer  asks  the  judg- 
ment of  the  court  whether  the  defendant  shall  make  further 
or  other  answer  to  the  1)111,  or  to  that  part  demurred  to,  it 
would  be  inconsistent  if  the  defendant,  after  making  such  sub- 
mission, were  to  be  permitted  to  answer  the  bill,  or  that  part 
of  it  which  is  intended  to  be  covered  by  the  demurrer.  (?j) 
It  is  for  this  reason,  well  settled,  that  an  answer  to  any  part 
of  a  bill  demurred  to  will  overrule  the  demurrer ;  {w)  even 
though  the  part  answered  be  immaterial,  {x)  But  a  demurrer 
for  multifariousness  is  not  overruled  by  an  answer  denying 
confederacy ;  {y)  nor  is  a  demurrer  to  relief  only  overruled 
by  an  answer  as  to  the  discovery,  (s) 

The  fact  that  a  bill  does  not  ask  for  the  proper  relief,  or 
asks  for  inconsistent  relief,  is  no  ground  for  demurrer,  {a) 

{t)  Baker  vs.  Hellish,  11  Ves.  70-76  ;  Stilhcell  vs.  McNeeley,  1  Green,  Cli. 
R.  305. 

{v)  Shepherd  vs.  Lloyd,  2  T.  &  Jerv.  490 ;  1  Barb.  Ch.  Pr.  109 ;  Story's 
Eq.  PI.  §  464 ;  see  Grouch  vs.  HicJcen,  1  Keen,  385 ;  Qarlick  vs.  Strong,  3 
Paige,  Ch.  R.  453. 

(«)    Jones  vs.  Ea/rl  of  Strafford,  3  P.  Wms.  R.  81 ;  1  Barb.  Ch.  Pr.  108. 

(id)  Tidd  vs.  Clare,  2  Dick.  R.  81 ;  Hester  vs.  Weston,  1  Vern.  R.  463 ; 
Roberts  vs.  Clayton,  3  Anst.  R.  715. 

{x)  Mitf.  Eq.  PI.  172 ;  1  Barb.  Ch.  Pr.  108 ;  Savage  vs.  Smalehroke,  1 
Vern.  90. 

iy)    Hester  -vs.Weston,  1  Vern.  R.  463;  1  Eq.  Cas.  Abr.  40. 

(2)     2  Dan.  76;  1  Barb.  Ch.  Pr.  108. 

(a)    Conner  vs.  Board  of  Supervisors,  10  Minn.  439. 


THE    DEtENSE   TO   A  8UIT.  107 

Demurrer  to  a  Bill  —  When  to  be  Filed  —  Hearing,  etc. 

Demurrer  to  plea  or  answer. —  The  practice  of  demurring 
to  an  answer  is  in  violation  of  all  the  rules  of  chancery  prac- 
tice, and  will  not  be  tolerated.  (5)  The  same  may  be  said  of 
demurring  to  a  plea.  The  proper  practice  is  to  set  down  the 
plea  for  hearing,  when  its  sufficiency  will   be  considered.  (c\ 

When  to  he  filed.  —  A  demurrer  should  be  filed  before  the 
complainant  is  entitled  to  a  default,  and  all  objections  to  the 
bill  must  be  made  in  the  court  where  the  same  is  filed.  It  is 
too  late  to  make  objections  to  the  sufficiency  of  the  bill,  for  the 
first  time  in  the  supreme  court,  {d) 

In  the  courts  of  equity  of  the  United  States  no  demurrer  will 
be  allowed  to  be  filed,  unless  upon  a  certificate  of  counsel, 
that  in  his  opinion  it  is  well  founded  in  point  of  law,  and  is 
supported  by  the  affidavit  of  the  defendant,  that  it  is  not  inter- 
posed for  delay,  {e) 

Hearing,  —  In  hearing  a  demurrer,  the  argument  is  strictly 
confined  to  the  case  appearing  upon  the  record  ;  and,  for  the 
pur]30se  of  the  argument,  the  matters  of  fact  stated  in  the  bill 
are  admitted  to  be  true,  {f) 

Effect  of  sustaining  demurrer.  —  On  a  demurrer  to  the 
merits  of  the  whole  bill,  if  it  is  sustained,  the  bill  will  be  dis- 
missed, and  the  court  will  not  grant  leave  to  amend,  {(j)  But 
the  allowance  of  a  partial  demurrer,  (A)  or  a  special  demurrer 
on  matters  of  form,  or  where  the  court  can  see  that  the  objec- 
tions to  the  bill  can  be  obviated  by  amendment,  it  will  be 

(6)    Stone  vs.  Moore,  26  111.  165 ;  Story's  Eq.  PI.  §  456. 

(c)  Lester  vs.  Stevens,  29  111.  155;  Mitf.  Eq.  PI.  301 ;  Coop.  Eq.  PI.  231; 
Durant  vs.  Redman,  1  Vern.  78  ;  Thomas  vs.  Brashear,  4  Monr.  65. 

{d)  Hickey  vs.  Forristal,  49  111.  255  ;  Nelson  vs.  First  Nat.  Bank,  Chicago, 
48  111.  36. 

{e)     Rule  31,  Rules  of  Prac.  for  the  C.  E.  U.  S.  1870. 

(/)  East  India  Co.  vs.  Hinchman.  1  Ves.  Jr.  289  ;  1  Barb.  Ch.  Pr.  Ill ; 
Wales  vs.  Bank  of  Michigan,  Harring.  Ch.  R.  308 ;  Green  vs.  Dodge,  6 
Ham.  80. 

{g)  1  Johns.  Ch.  R.  184 ;  Smit7i  vs.  Barnes,  1  Dick.  67  ;  Watkins  vs.  Bush, 
2  Dick.  701. 

{h)    1  Barb.  Ch.  Pr.  Ill ;  Mitf.  Eq.  PI.  214. 


108  THE   DEFENSE   TO  A  SUIT. 


Demurrer  to  Bill  —  Form  of  General  Demurrer. 


attended  with  no  such  consequences,  (^)  and  unless  leave  to 
amend  is  asked,  a  dismissal  of  the  bill  is  the  proper  decree.  (J) 

Effect  of  overruling  demurrer.  —  If  a  demurrer  is  overruled 
as  frivolous,  the  defendant  may  have  leave  to  amend  ;  if,  how- 
ever, he  refuses  or  neglects  so  to  do,  the  complainant  may  have 
an  order  that  the  bill  be  taken  as  confessed.  If  the  cause  of 
demurrer  to  a  bill  can  be  removed  by  an  amendment,  the  court 
may,  without  deciding  the  demurrer,  allow  the  complainant  to 
amend  his  bill,  npon  payment  of  the  costs  incurred  by  the 
defendant,  {k) 

Upon  overruling  a  demurrer  it  is  not  necessary  that  the 
courjt  should  rule  the  defendant  to  answer,  but  may  at  once 
proceed  to  a  decree.  (Z) 

Notwithstanding  a  demurrer  to  a  bill  is  overruled,  the  defend- 
ant is  entitled  to  file  an  answer,  (m) 

1^0.  16.     Frame  of  a  general  demurrer. 

In  the Court. 

C.  D.  )  Term,  18—. 

ats.     )-  In  Chancerv. 
A.  B.  ) 

Tlie  demurrer  of  C.  D.,  defendant,  to  the  bill  of  com- 
plaint of  A.  B.,  complainant. 
This  defendant,  by  protestation,  not  confessing  or  acknowl- 
edging all  or  any  of  the  matters  and  things  in  the  said  bill  of 
complaint  contained  to  be  true,  in  such  manner  and  form  as 
the  same  are  therein  and  thereby  set  forth  and  alleged,  {a) 
demurs  to  said  bill,  and  for  cause  of  demur  shows,*  that,  etc. 
{Here  set  forth  the  cause  of  demurrer.) 

{{)  Parker  vs.  Aloch,  1  Young  &  Jer.  R.  194 ;  1  Har.  Pr.  61 ;  1  Dan.  524 ; 
Holmes  vs.  Waring,  8  Price,  604. 

{j)  McDowell  vs.  Cochran,  11  111.  31. 

{k)    Crowder  vs.  Turney,  3  Cald.  Tenn.  551. 

{I)     Wangelin  vs.  Goe,  50  111.  459  ;  Roach  vs.  Chapin,  27  111.  194. 

(m)  Smith  vs.  Ballentyne,  10  Paige,  Ch.  R.  101 ;  North-western  Bank  vs. 
Jfelson,  1  Gratt.  Va.  108 ;  Sutton  vs.  Gatewood,  6  Munf.  398 ;  Forrest  vs. 
Robinson,  4  Porter,  Ala.  44 ;  Avery  vs.  Holland,  2  Overton,  71  ;  Bottorf  vs. 
Conner,  1  Blackf.  287  ;  Lefavour  vs.  Justice,  5  Blackf .  366  ;  Barb.  Ch.  Pr.  112 ; 
Barnard  vs.  Cnshman,  35  111.  452. 


THE  DEFENSE   TO  A  SUIT.  109 

Demurrer  to  Bill  —  Short  Form  of  Demurrer. 

Wherefore,  and  for  divers  other  good  causes  of  demurrer 
appearing  in  the  said  bill  of  complaint,  this  defendant  demurs 
to  the  said  bill,  and  to  all  the  matters  and  things  therein  con- 
tained, and  prays  the  judgment  of  this  honorable  court  whether 
he  shall  be  compelled  to  make  any  Inrther  or  other  answer  to 
the  said  bill,  and  he  prays  to  be  dismissed  with  his  reasonable 
costs  in  this  behalf  sustained. 

By Solicitor  for  defeiidant. 


It  has  been  the  general  practice  in  framing  a  demurrer  to 
introduce  a  protestation  against  the  truth  of  any  of  the  facts 
alleged  in  the  bill ;  but  it  has  no  w^eight  with  the  court,  and  is 
entirely  useless,  {n) 

The  following  form  may,  therefore,  suffice. 

No.  17.     Short  form,  of  demurrer. 

{Title  of  cause  as  in  No.  16.) 

The  demurrer  of  C.  D.,  defendant,  to  the  bill  of  com- 
plaint of  A.  B.,  complainant. 
This  defendant  demurs  to  the  said  bill,  and  for  cause  of 
demur  shows,*  that,  etc.    {Here  insert  the  cause  of  demurrer^ 
Wherefore  this  defendant  demurs  to  the  said  bill,  and  to  all 
the  matters  and  things  therein  contained,  and  prays  the  judg- 
ment of  this  honorable  court  whether  he  shall  be  compelled 
to  make  any  further  or  other  answer  thereto,  and  prays  to  be 
dismissed  with  his  reasonable  costs  in  this  behalf  sustained. 

Demurrer  or  Plea  to  Bill  in  the  United.  States  Court. — 
The  31st  Eule  of  Practice  for  the  courts  of  equity  of  the  United 
States,  provides  that  "  no  demurrer  or  plea  shall  be  allow^ed  to 
be  filed  to  any  bill,  unless  upon  a  certificate  of  counsel,  that  in 
his  opinion  it  is  well  founded  in  point  of  law,  and  supported 
by  the  affidavit  of  the  defendant,  that  it  is  not  interposed 
for  delay ;  and  if  a  plea,  that  it  is  true  in  point  of  feet." 

The  certificate  of  counsel  in  such  case  may  be  as  follows : 


(n)    Barton's  Suit  in  Eq.  99,  note(l);  Story's  Eq.  Pl.§452;    Mitf.  Eq. 
PI.  107,  211,  212  ;  Coop.  Eq.  PI.  111. 


110  THE   DEFENSE   TO  A  SUIT. 

Demurrer  to  Bill,  etc.  —  Demurrer  for  want  of  Equity. 

1^0.  18.     Certificate  of  counsel  that  a  demurrer  to  a  MIX  i/n 
TJ.  S.  Court  is  well  foxmded  in  law. 

{Following  the  demurrer  add :) 

I  certify  that,  in  my  opinion,  the  foregoing  demurrer  of  C. 
D.,  defendant,  to  tlie  bill  of  complaint  of  A.  B.,  complainant, 
is  well  founded  in  law,  and  proper  to  be  filed  in  the  above 
cause. 

Sol.  for  defendant. 

The  affidavit  of  the  defendant  that  the  demurrer  is  not  inter- 
posed for  delay,  may  be  in  the  following  form : 

iVo.  19.     Affidavit  of  defendant  that  a  demurrer  to  a  hill  i/n 
the  TJ.  S.  Court  is  not  interposed  for  delay. 

[Following  the  certificate  of  counsel  add :) 
United  States  of  America,  [ 


District  of 


ss. 


C.  D.,  the  defendant,  on  oath  states,  that  he  has  heard  read 
the  foregoing  demurrer  to  the  bill  of  complaint  of  A.  B.  in  this 
suit ;  and  that  the  same  is  not  interposed  for  the  purpose  of 
delaying  said  suit,  or  any  proceedings  therein.  C.  D. 

Subscribed,  etc. 

No.  20.     Demurrer  for  want  of  equity. 

[Comnnence  as  in  No.  16,  ante,  page  108,  at  the  *,  and  state 
cause  of  demurrer  as  follows :) 

That  the  complainant  has  not  in  and  by  his  said  bill,  made 
or  stated  such  a  case  as  entitles  him,  in  a  court  of  equity,  to 
any  discovery  or  relief  from  or  against  this  defendant  touch- 
ing the  matters  contained  in  the  said  bill,  or  any  of  such 
matters,  {a) 

Wherefore,  etc.     {Conclude  as  in  No.  16.) 

{If  there  are  more  than  one  cause  of  deinurrer,  insert  at 
the  (a)  in  the  above  precedent,  the  following :)  "And  for  a  far- 
ther cause  of  demurrer  this  defendant  shows,  that,  etc.  {Here 
set  forth  the  further  cause  of  demurrer,  a/nd  so  on,  and  conr 
elude :) 

Wherefore,  etc.,  {as  in  No.  16.) 


THE   DEFENSE   TO  A  8U1T.  HI 


Demurrer  to  Bill  —  For  Multifariousness  —  Want  of  Parties,  etc. 

No.  '21.     Demurrer  f 07'  Multifariousness. 

{Com.mence  as  in  No.  16,  ante,  ;page  108,  at  the  *,  and  state 
cause  of  demurrer  as  follows :) 

That  it  appears  by  the  said  bill  that  the  same  is  exhibited 
against  this  defendant,  and  the  several  other  persons  therein 
named  as  defendants  thereto  for  distinct  matters  and  causes, 
in  several  whereof,  as  appears  by  the  said  bill,  this  defendant 
is  not  in  any  manner  interested  or  concerned,  and  that  the  biL 
is  altogether  multifarious. 

Wherefore,  etc.     {Conclude  as  in  JVo.  16.) 

No.  22.     Demurrer  for  want  of  pai'ties. 

[Co'inmence  as  in  No.  16,  ante,  page  108,  to  the  *,  and^  state 
cause  of  demurrer  as  follows :) 

That  it  appears  by  the  complainant's  bill,  that  G.  II.,  therein 
named,  is  a  necessary  party  to  the  said  bill,  inasmuch  as  it  is 
therein  stated,  that  E.  F.,  the  testator  in  the  said  bill  named, 
did,  in  his  lifetime,  by  certain  conveyances  made  to  the  said  G. 

H.,  in  consideration  of dollars,  convey  to  him  by  way  of 

mortgage,  certain  estates,  in  the  said  bill  particularly  mentioned 
and  described,  for  the  purpose  of  paying  the  said  testator's 
debts  and  legacies ;  but  the  complainant  has  not  made  the  said 
G.  H.  a  party  to  said  bill. 

Wherefore,  etc.     [Conclude  as  in  No.  16.) 

No.  23.     Demurrer  for  want  of  'privity. 

{Commence  as  in  No.  16,  ante,  jpage  108,  to  the  *,  and  state 
cause  of  demurrer  as  follows :) 

That  it  appears  by  the  complainant's  said  bill,  that  there  is 
no  privity  between  the  complainant  and  this  defendant,  to 
enable  the  complainant  to  call  upon  this  defendant  for  the  pay- 
ment of  any  debt  due  to  the  estate  of  the  said  testator  from  this 
defendant. 

Wherefore,  etc.     {Conclude  as  in  No.  16.) 

No.  24-.     Demurrer  to  a  bill  of  discovery,  where  the  defendant 
could  he  examined  as  a  witness. 

{Co7mne7ice  as  in  No.  16,  ante,  page  108,  to  the  *,  and  state 
cause  of  demurrer  as  follows :) 

That  the  complainant  has  not,  in  and  by  his  said  bill,  stated, 
charged  or  shown,  tliat  this  defendant  has,  or  pretends  to  have, 


112  THE   DEFENSE   TO  A  SUIT. 

Demurrer  to  Bill  —  Demurrer  to  part  of  Bill,  etc. 

any  right,  title  or  interest  in  the  matters  and  things  complained 
of  by  the  said  bill,  or  any  of  them  ;  or  any  right  to  call  upon 
this  defendant,  in  a  court  of  equity,  for  a  discovery  of  said 
matters  and  things,  or  any  of  them.  And  that  for  anything 
that  appears  to  the  contrary  by  said  bill,  this  defendant  may  be 
examined  as  a  witness  in  this  suit. 

Whei-efore,  etc.     {Conclude  as  in  No.  16.) 

No.  ^6.     DemiLvreT  to  a  hill^  where  the  complainant  has  no 
interest  in  the  subject. 

[Commence  as  in  No.  16,  ante,  page  108,  to  the  *,  and  state 
cause  of  deimirrer  as  follows :) 

That  the  complainant  has  not,  as  appears  by  his  said  bill, 
made  out  any  title  to  the  relief  thereby  prayed. 

Wherefore,  etc.     {Conclude  as  in  No.  16.) 

No.  26.    Demurrer  to  a  part  cf  the  hill. 

{Proceed  as  in  No.  16,  ante,  page  108,  to  {a)  and  then  insert 
the  following :)  As  to  so  much  of  said  bill  as  seeks  that  this 
defendant  may  answer  and  set  forth  whether,  etc.,  {state  the 
matter  demjui'red  to,)  or  seeks  any  discovery  from  this  defend- 
ant, whether,  etc.,  {setting  out  the  interrogatory^  demurs 
thereto,  and  for  cause  of  demurrer  shows,  that,  etc.,  {Here  set 
forth  the  cause  of  demurrer^  as  to  the  matters  hereinbe- 
fore specified,  or  any  of  such  matters. 

Wherefore,  and  for  divers  other  good  causes  of  demurrer 
appearing  in  tlie  said  bill  of  complaint,  as  to  so  much  thereof 
as  before  is  set  forth,  this  defendant  demurs  and  prays  the 
judgment  of  this  honorable  court  whether  he  shall  be  com- 
pelled to  make  any  further  answer  to  such  parts  of  the  said 
bill  as  is  so  demurred  to  as  aforesaid. 

By Sol.  for  Defendant. 

No.  27.    Demurrer  to  p>art  of  a  hill,  with  an  answer  to  the 

residue. 

{Proceed  as  in  last  forin.  No.  26,  to  the  end,  and  continue 
as  follows :)  And  this  defendant  not  waiving  his  said  demur- 
rer, but  relying  thereon,  and  saving  and  reserving  unto  him- 
self all  benefit  and  advantage  of  exception  to  the  many  errors, 
uncertainties  and  other  imperfections  in  the  residue  of  the  said 
bill  contained,  this  defendant  for  answer  says,  etc.  {Continu£ 
as  in  form  of  am.  answer,  No.  57,  post.) 


THE  DEFENSE   TO  A  SUIT.  US'- 

Plea  to  a  Bill  —  Nature  of. 


SECTION  IV. 
II.    PLEA    TO    A    BILL. 

Nature  of. —  When  an  objection  to  a  bill  in  chancery  is  not 
apparent  on  the  bill  itself,  or,  as  the  technical  phrase  is,  dehors 
the  bill,  if  the  defendant  means  to  take  advantage  of  it,  he 
must  show  the  matter  which  creates  the  objection,  to  the  court 
by  a  plea,  or  by  answer,  {a)  In  some  cases,  the  objection  can 
be  taken  only  by  a  plea;  in  others,  again,  it  may  be  taken 
either  by  a  plea  or  by  answer ;  and  in  others  again,  it  can  be 
taken  only  by  answer.  (5)  In  other  words,  the  defendant  may 
demur  to  one  part  of  the  bill,  plead  to  another,  answer  to 
another,  and  disclaim  as  to  another,  if  the  nature  of  his  case 
requires  it,  in  the  same  manner  as  he  may  demur,  or  plead,  or 
answer  to  the  wliole  bill,  if  his  defense  equally  applies  to  aU 
parts  thereof,  (c) 

Pleas  are  usually  divided  into  two  sorts;  one  commonly 
called  pure  pleas,  which  contain  matter  wholly  dehors  the  bill, 
such  as  a  release,  or  a  settled  account ;  and  another,  called, 
in  contradistinction  to  the  other,  pleas  not  pure,  or  anomalous 
pleas,  and  most  generally  negative  pleas,  which  consist  mainly 
of  denials  of  the  substantial  matters  set  forth  in  the  bill,  {d^ 

The  true  office  of  a  plea  is  to  save  to  the  parties  the  expense 
of  an  examination  of  the  witnesses  at  large ;  and  the  defense 
proper  for  a  plea  is  such  as  reduces  the  cause,  or  some 
part  of  it,  to  a  single  point,  and  from  thence  creates  a  bar  or 
other  obstruction  to  the  suit,  or  to  the  point,  to  which  the  plea 

(a)  Story's  Eq.  PI.  §  647 ;  Mitf.  Eq.  PI.  219. 

(&)  Story's  Eq.  PI.  §  439,  647 ;  Aggas  vp.  Pickerill,  3  Atk.  236 ;  Ha/rria  vs. 
Pollard,  3  P.  Wms.  R.  348 ;  Coop.  Eq.  PI.  302 ;  see  Bowe  vs.  Tweed,  15' 
Ve3.377. 

(c)  Bowes  vs.  McMichael,  6  Paige,  Ch.  R.  383 ;  Lord  Red.  214 ;  Story'a 
Eq.  PL  §  647 ;  Mitf.  Eq.  PL  319 ;  Beard  vs.  Bowler,  2  Bond,  13- 

{d)  Story's  Eq.  PL  §  667,  051 ;  Sanders  vs.  King,  6  Mad.  R.  61 ;  Penning- 
ton vs.  Beachy,  2  Sim.  &  Stu.  R.  274,  276 ;  2  Dan.  Ch.  Pr.  99,  100, 110,  111. 
8 


114  THE   DEFENSE   TO  A  SUIT.     . 

Plea  to  a  Bill  —  Nature  of  —  When  Proper. 

applies,  (e)  Therefore  a  plea,  to  be  good,  whether  it  be 
affirmative  or  negative,  must  be  either  an  allegation  or  a 
denial  of  some  leading  fact,  or  of  matters  which,  taken  col 
lectively,  make  out  some  general  fact,  which  is  a  complete 
defense.  (/*)  But,  although  a  defense,  offered  by  way  of  plea, 
should  consist  of  a  great  variety  of  circumstances,  yet,  if  tliey 
all  tend  to  a  single  point,  the  plea  may  be  good,  (g)  Where  a 
defense  consists  of  numerous  facts  and  circumstances,  making 
it  necessary  to  go  into  the  examination  of  witnesses  at  large, 
it  should  be  set  up  by  answer,  and  not  by  plea.  (A) 

And  where  the  allegations  of  a  plea,  being  taken  as  true,  do 
not  make  out  a  full  defense,  or  where  the  necessary  facts  are 
to  be  gathered  by  inference  alone,  the  plea  will  not  be  sus- 
tained, {i)  And  where  all  the  facts  set  up  by  a  plea  appear 
upon  the  face  of  the  bill,  the  plea  is  bad.  {j) 

When  pkopek. —  The  limit  of  this  work  will  not  justify 
much  of  its  space  to  be  taken  up  in  considering  this  branch  of 
the  subject.  The  reader's  attention  is  directed  to  other  works, 
where  the  subject  is  treated  of  fully  and  at  large,  (k) 

Pleas  have  been  arranged  under  four  classes :  I,  To  the  juris- 
diction ;  II,  to  the  person  of  the  plaintiff;  III,  to  the  bill,  or 
the  frame  thereof;  and  TV,  in  bar. 

(e)  Story's  Eq.  PI.  §  652  ;  Mitf .  Eq.  PI.  295 ;  Coop.  Eq.  PI.  223 ;  Chapman 
vs.  Turner,  1  Atk.  R.  54 ;  Ritclde  vs.  Aylioin,  15  Ves.  R.  82 ;  Bowe  vs. 
Tweed,  15  Ves.  378 ;  Wood  vs.  Rowe,  2  Bligh,  R.  595,  614 ;  Heartt  vs.  Corii- 
ing,  3  Paige,  Ch.  R.  566. 

(/)  Robertson  vs.  Lubbock,  4  Sim.  R.  161;  Salters  vs.  Tobias,  7  Johns.  Ch. 
E.  214;  2  Dan.  Ch.  Pr.  102-104. 

{g)  Story's  Eq.  PI.  §  652 ;  2  Dan.  Ch.  Pr.  103  ;  Mitf.  Eq.  PI.  296  ;  Bitehie 
TS.  Aylwin,  15  Ves.  82 ;  Dawson  vs.  Pilling,  16  Sim.  R.  203. 

{h)    Loud  vs.  Sergeant,  1  Edw.  Ch.  R.  164. 

(f)  Meeker  vs.  Marsh,  Saxon  R.  198 ;  see  Piatt  vs.  Oliver,  1  McLean, 
295 ;  Lewis  vs.  Baird,  3  McLean,  56. 

(J)  Phelps  vs.  Oarrow,  3  Edw.  Ch.  R.  139 ;  Varick  vs.  Dodge,  9  Paige, 
Ch.  R.  149 ;  Fowler  vs.  Lewis,  3  A.  K.  Marsh.  R.  443 ;  Cozine  vs.  Graham, 
2  Paige,  Ch.  R.  177. 

(k)  See  Story's  Eq.  PI.  §  647-837  ;  Coop.  Eq.  PI. ;  Dan.  Ch.  Pr. ;  Mitf. 
Eq.  PI. ;  Welf .  Eq.  PI. 


THE   DEFENSE   TO  A  SUIT.  115 

Plea  to  a  Bill  —  To  the  Jurisdiction,  etc.  —  To  the  Person. 

I.  To  the  jurisdiction  of  the  court. —  A  plea  to  tlie  juris- 
diction does  not  dispute  the  right  of  the  complainant  in  the 
suit,  hut  simply  asserts  eitlier  that  his  claim  is  not  a  fit  subject 
of  cognizance  in  a  court  of  equity,  or  that  some  other  tribunal- 
is  invested  with  the  proper  jurisdiction.  It  is  difficult  to  dis- 
guise any  case,  wliich  this  plea  would  reach,  so  as  to  avoid  a 
demurrer;  but  there  may  be  instances  to  the  contraiy,  and 
even  averments  in  the  bill,  which  would  leave  the  defend- 
dant  no  other  means  of  protecting  himself.  If,  for  example, 
a  bill  in  the  circuit  court  of  the  United  States  should  allege 
that  the  complainants  and  defendants  are  citizens  of  different 
states,  the  defendant  can  only  contest  this  fact  by  a  plea  to 
the  jurisdiction.  Again,  the  statute  of  Illinois  requires  all  suits 
in  chancery  to  be  brought  in  the  county  where  the  defendants, 
or  some  one  or  more  of  them,  reside.  If  the  suit  is  brought 
in  a  different  county,  and  that  fact  does  not  appear  on  the  face 
of  the  bill,  advantage  must  be  taken  of  the  objection  by  a  plea. 
The  court  of  chancery  being  one  of  general  equity  jurisdiction, 
a  mere  allegation  of  the  want  of  jurisdiction  is  not  sufficient ; 
but  the  plea  must  show  by  what  means  the  jurisdiction  has 
been  lost,  and  by  what  court  it  is  possessed.  (1) 

An  exception  to  the  jurisdiction,  by  denial  of  the  fact  of 
citizenship,  must  be  taken  by  plea  in  abatement;  it  cannot.be 
insisted  on  by  way  of  answer,  (m)  A  defendant  will  not  be 
allowed,  by  plea,  to  deny  the  citizenship  of  his  co-defendant,  so 
as  to  oust  the  jurisdiction,  it  being  a  personal  privilege,  {n) 

II.  To  the  person. — A  plea  to  the  person  of  the  complain- 
ant merely  disputes  the  ability  of  the  complainant  to  sue,  with- 
out putting  in  issue  the  subject  matter  of  the  controversy.  It 
may  assert  either  that  the  complainant  is  an  alien  enemy,  or 

{T)  Barton's  Suit  in  Eq.  103 ;  Burger  vs.  Potter,  32  111.  66 ;  Lester  vs. 
Stevens,  29  111.  155  ;  Varick  vs.  Dodge,  9  Paige,  Ch,  R.  149  ;  see  Story's  Eq. 
PI.  §  710-721;  Emerson  vs.  W.  U.  R.R.  Co.  75  111.  176. 

(m)  Wood  vs.  Mann,  1  Sumner,  578 ;  Livingston  vs.  Story,  11  Pet.  351 ; 
Dodge  vs.  Perkins,  4  Mason,  435 ;  Burnham  vs.  Rangeley,  1  W.  &  M.  C.  0. 
R.7. 

(n)  Harrison  vs.  Urann,  1  Story,  64. 


116  THE   DEFENSE   TO  A  SUIT. 

Plea  to  a  Bill  — Plea  to  tlie  Bill  — Plea  to  Bar  — Frame  of  Plea. 

that  lie  is  an  alien,  and  the  suit  respects  lauds ;  or  that  the 
complainant  is  an  infant,  feme  covert,  lunatic,  or  bankrupt ; 
or  that  he  is  not  the  person  whom  he  pretends  to  be  in  his 
bill ;  or  does  not  sustain  the  character  which  he  assumes,  [o) 

The  bankruptcy  of  the  complainant,  and  non-joinder  of  his 
assignee,  must  be  pleaded ;  it  cannot  be  insisted  on  by  way  of 
answer,  {p) 

III.  To  the  hill. — Pleas  to  the  bill,  or  the  frame  of  the  bill, 
bear  a  close  resemblance  to  pleas  in  abatement  of  the  action  at 
common  law.  Without  disputing  the  right  of  the  complain- 
ant to  the  relief  which  he  seeks,  they  allege  that  the  suit,  as  it 
appears  on  the  record,  is  insufficient  to  answer  the  purposes  of 
complete  justice,  or  ought  not  for  some  reason  to  proceed.  The 
most  usual  of  these  pleas  are  either  the  pendency  of  another 
suit  for  the  same  matter  in  another  court  of  equity ;  or  the 
want  of  proper  parties  to  the  bill,  {g) 

lY.  Pleas  in  bar. —  Pleas  in  bar  are  usually  divided  into 
three  heads :  1,  pleas  founded  upon  some  defense  created  by 
statute,  such  as  limitations,  or  the  statute  of  frauds ;  2,  pleas 
founded  on  matter  of  record,  such  as  a  former  decree ;  and  3, 
pleas  of  matters  i/n  pais,  to  which  belong  the  plea  of  a  stated 
account,  of  an  award,  of  a  release,  of  a  purchase  for  a  valuable 
consideration,  and  of  title  in  defendant,  obtained  either  by 
adverse  possession  for  a  length  of  time,  or  by  deed  or  will,  {r) 

Frame  of  Plea. — A  plea  is  preceded  by  a  title  in  this  form : 
"  The  plea  of  C.  D.,  a  defendant,  to  the  bill  of  complaint  of  A. 
B.,  complainant,"  or  "  The  joint  and  several  plea  of  C.  D.  and 
E.  F.,  defendants,"  etc.     Where  it  is  the  plea  of  husband  and 

{0)  Barton's  Suit  in  Eq.  103  ;  Story's  Eq.  PI.  §  723-739 ;  Mitf .  Eq.  PI.  230 ; 
Beame's  PI.  in  Eq.  120-122 ;  Coop.  Eq.  PL  249,  250 ;  Ord  vs.  Huddleston,  2 
Dick.  510. 

ip)  Kittredge  vs.  Claremont  Bank,  3  Story,  590. 

{q)    Barton's  Suit  in  Eq.  103, 104  ;  Story's  Eq.  PI.  §  735-835. 

(r)    Barton's  Suit  in  Eq.  104 ;  Story's  Eq.  PI.  §  748-778. 


THE   DEFENSE   TO  A  SUIT.  117 

Plea  to  a  Bill  —  Frame  of  Plea. 

wife,  the  words  "  and  several"  should  not  be  inserted ;  though 
these  words  will  not  vitiate  the  plea,  being  mere  surplusage,  {s) 

A  plea,  like  a  demurrer,  is  introduced  by  a  protestation 
against  the  confession  of  the  truth  of  any  matter  contained  in 
the  bill.  It  next  states  how  much  of  the  bill  it  is  intended  to 
cover,  and  what  part  in  particular ;  and  this  must  be  clearly 
and  distinctly  shown,  (t)  Therefore,  a  plea  to  such  parts  of  the 
bill  as  are  not  answered,  will  be  overruled  as  too  general,  {u) 

A  plea  in  bar  must  be  accompanied  by  an  answer,  showing 
the  truth  of  the  plea,  and  denying  the  charges  of  the  bill,  (v) 
And  it  is  not  sufficient  to  deny  only  a  part  of  the  material  facts 
stated  in  the  bill ;  a  mere  denial  of  facts  is  proper  for  an  answer, 
but  not  for  a  plea,  {w) 

If  the  plea  professes  to  go  to  the  whole  bill,  and  does,  in 
fact,  cover  the  whole  subject  to  which  the  plea  applies,  and  the 
matter  is  a  full  defense  to  the  suit,  it  is  unnecessary  to  answer 
other  parts  of  the  bill  not  involved  in  the  subject  which  forms 
the  ground  of  defense,  (x) 

A  plea  must  be  perfect  in  itself,  so  that,  if  true,  it  will  make 
an  end  of  the  case,  (y) 

"Where  the  plea  is  of  matter  which  shows  an  imperfection  in 
the  frame  of  the  bill,  it  should  point  out  in  what  that  imper- 
fection consists.  Where,  for  instance,  a  plea  is  for  want  of 
parties,  it  must  not  only  show  that  there  is  a  deficiency  of 
parties,  but  should  point  out  who  the  parties  are  that  are 
wanting,  (s) 

The  plea  commonly  concludes  with  a  repetition  that  the 
matters  so  oiFered  are  relied  upon  as  an  objection  or  bar  to  the 

(s)  1  Barb.  Ch.  Pr.  115  ;  Paoie  vs.  A' Court,  1  Dick.  R.  13 ;  Story 'a  Eq. 
PI.  §  736-739. 

(«)    Mitf .  Eq.  PI.  294,  300. 

(«)    Anon.  3  Atk.  R.  70. 

(v)    Piatt  vs.  Oliver,  1  McLean,  R.  295  ;  8  N.  H.  280  ;  5  Johns.  Ch.  555  ; 

(x)   Sims  vs.  Lyle,  4  Wash.  C.  C.  Rep.  301. 

(w)  Milligan  vs.  Milledge,  3  Cranch,  R.  220. 

(x)   Sims  vs.  Lyle,  Wash.  C.  C.  Rep.  301. 

iy)  Allen  vs.  Randolph,  4  Johns.  Ch.  R.  693  ;  see  also  Bogardus  vs.  Trinity 
ChurcJi,  4  Paige.  Ch.  R.  178. 

(a)    Merreweather  vs.  MellisJi,  13  Ves.  437-8. 


118  THE   DEFENSE   TO  A  SUIT. 

Plea  to  a  Bill  —  Frame  of  Plea. 

suit,  or  so  much  of  it  as  the  plea  extends  to ;  and  prays  the 
judgment  of  the  court  whether  tlie  defendant  ought  to  be 
compelled  further  to  answer  the  bill,  or  such  parts  as  are  thus 
pleaded  to.  {a) 

If  the  plea  is  double,  that  is  to  say,  if  it  tenders  more  than 
one  defense  as  the  result  of  the  facts  stated,  it  will  be  bad.  Q)) 
A  plea  is  not  rendered  double,  however,  by  the  mere  insertion 
therein  of  several  averments,  that  are  necessary  to  exclude 
conclusions  arising  from  allegations  which  are  made  in  the  bill, 
to  anticipate  and  defeat  the  bar  which  might  be  set  up  in  the 
plea,  (c) 

The  rule  that  a  defendant  cannot  plead  double,  is  not  to  be 
understood  as  precluding  the  defendant  from  putting  in  several 
pleas  to  different  parts  of  the  same  bill.  It  merely  prohibits 
his  pleading,  without  previous  leave,  a  double  defense  to  the 
whole  bill,  or  to  the  same  portion  of  it.  A  defendant  may 
plead  different  matters  to  separate  parts  of  the  same  bill,  in  the 
same  manner  as  he  may  demur  to  different  portions  of  the 
bill,  {d) 

In  addition  to  the  requisites  of  a  plea  already  mentioned,  it 
may  be  stated  that  a  plea  must  be  certain.  It  must  tender 
issuable  matter,  the  truth  or  falsehood  of  which  may  be  replied 
to  or  put  in  issue ;  and  that  not  in  the  form  of  general  propo- 
sitions, but  specifically  and  distinctly,  {e) 

Where  the  plea  is  accompanied  by  an  answer,  the  answer 
must  follow  the  conclusion  of  the  plea.  If  the  answer  is 
merely  to  support  the  plea,  it  is  stated  to  be  made  for  that 
purpose,  "  not  waiving  the  plea."  If  the  plea  is  to  part  of  the 
bill  only,  and  there  is  an  answer  to  the  rest,  it  is  expressed  to 
be  an  answer  to  so  much  of  the  bill  as  is  not  before  pleaded  to ; 


{a)  Mltf.  Eq.  PI.  300 ;  1  Barb.  Ch.  Pr.  116. 

(&)  Nubldssen  vs.  Hastings,  2  Ves.  Jr.  R.  84 ;  Jo7ies  vs.  Frost,  3  Mad.  1,  8. 

(c)  Bogardus  vs.  Trinity  Church,  4  Paige,  Ch.  R.  178 ;  1  Barb.  Ch.  Pr. 
116. 

{d)  2  Dan.  Ch.  Pr.  105 ;  Moreton  vs.  Harrison,  1  Bland,  493 ;  Ridgeley  va. 
Warfield,  1  Bland,  194. 

(e)  Nabob  of  Arcott  vs.  East  I.  Co.  3  Bro.  C.  C.  293;  1  Barb.  Ch.  Pr.  117; 
Allen  vs.  Randolph,  4  Johns.  Ch.  R.  693. 


THE   DEFENSE   TO  A  SUIT.  119 

Plea  to  a  Bill  —  Forms  of  Pleas  —  Commencement  and  Conclusions. 

and  is  preceded  by  tlie  same  protestation  against  waiver  of  the 
plea,  {f)  If  tlie  plea  is  such,  that  an  answer  is  required  to 
support  it,  it  will  be  overruled,  unless  such  answer  is  put  in.  {g) 

FORMS    OF    PLEAS. 

No.  ^8.      Commencement    and   conclusion   of  pleas   to    the 

■whole  hill. 

court. 

Term,  18  —. 

In  Chancery. 

The  plea  of  C.  D.,  defendant,  to  the  bill  of  complaint 
of  A.  B.,  complainant. 

This  defendant  by  protestation,  not  confessing  or  acknowl- 
edging all  or  any  of  the  matters  and  things  in  the  complain- 
ant's said  bill  mentioned  to  be  true  in  such  manner  and  form 
as  the  same  are  therein  and  thereby  set  forth  and  alleged,  doth 
plead  thereunto,  and  for  plea  says,  (*)  that,  etc.  [Here  set 
forth  the  suhject  m.atter  of  the  plea,  and  conclude  as  folloios :) 
All  whicli  matters  and  things  this  defendant  avers  to  be  true, 
and  pleads  the  same  to  the  whole  of  the  said  bill,  and  demands 
the  judgment  of  this  honorable  court  whether  he  ought  to  be 
compelled  to  make  any  answer  to  the  said  bill  of  complaint : 
and  prays  to  be  hence  dismissed,  with  his  reasonable  costs  in 
this  behalf  most  wrongfully  sustained. 

By ,  Solicitor  for  Deft. 

(If  the  plea  is  of  matters  in  pais,  add  affidavit.) 

No.  29.     Commencement  and  conclusion  of  pleas  to  part  of  a 

hill. 
{Title  of  cause.) 

The  plea  of  C.  D.,  defendant  to  the  bill  of  com- 
plaint of  A.  B.,  complainant. 
This  defendant,  by  protestation,  not  confessing  or  acknowl- 
edging the  matters  and  things  in  and  by  said  bill  set  forth  and 
alleged  to  be  true,  in  such  manner  and  form  as  the  same  are 
thereby  and  therein  set  forth  and  alleged,  fol*  plea  to  so  much 
and  such  parts  of  said  bill  as  prays,  etc.,  (or  seeTcs  a  discovery^ 
from  this  defendant,)  says,  that,  etc. 

(/)  Mitf.  Eq.  PL  300;  1  Barb.  Ch.  Pr.  117. 
.     ig)  Schtmrz  vs.  Wendell,  Harring.  Ch.  R.  395 ;  1  Gill  &  J.  270. 


120  THE   DEFENSE   TO  A  SUIT. 

Plea  to  a  Bill  —  Plea  in  Abatement,  etc. 

{Here  set  forth  the  subject  matter  of  the  plea,  and  conclude 
<is  follows :) 

Therefore,  this  defendant  doth  plead  the  same  in  bar  to  so 
much  of  the  said  complainant's  bill  as  hereinbefore  is  particu- 
larly mentioned ;  and  prays  the  judgment  of  this  honorable 
court  whether  he  should  be  compelled  to  make  any  further  an- 
swer to  so  much  of  the  said  bill  as  is  hereinbefore  pleaded  to, 
and  prays  to  be  hence  dismissed  with  his  costs  and  charges  in 
this  behalf  most  wrongfully  sustained. 

iV^o.  30.     Plea  in  ahatement  to  the  jurisdiction  of  the  court. 

{Commence  as  in  No.  '28,  ante, page  119,  to  the*)  That  these 
defendants,  and  each  and  all  of  them,  before  and  at  the  time 
of  filing  of  the  complainant's  bill  of  complaint,  were,  and  still 

are,  residents  of  the  county  of ,  in  said  state  ;  that  neither 

of  these  defendants,  at  the  time  of  filing  said  bill,  was  a  resi- 
dent of  the  county  of ,  where  said  bill  was  filed  ;  that  the 

said  suit  in  no  manner  afi^ects  or  relates  to  real  estate  in  the 
county  where  the  same  was  exhibited  as  aforesaid  ; 

Therefore,  etc.     {Conclude  as  in  No.  28.) 

The  above  plea  is  framed  with  reference  to  the  statute  of 
Illinois,  which  provides,  that  suits  in  chancery  shall  be  com- 
menced in  the  county  where  the  defendants,  or  some  one  or  more 
of  them  resides ;  or  if  the  defendants  are  all  non-residents, 
then  in  any  county  ;  or  if  the  suit  may  afiect  real  estate,  then 
in  the  county  where  the  same,  or  some  part  thereof,  i^  situ- 
ated. Bills  for  injunctions  to  stay  proceedings  at  law,  shall 
be  brought  in  the  county  in  which  the  proceedings  at  law 
are  had.  {g) 

No.  30a.     Plea  of  coverture  of  the  complainant. 

{Commence  as  in  No.  28,  ante,  page  119,  to  the  *)  That  the 
complainant,  before  and  at  the  time  of  filing  her  said  bill,  was, 
and  now  is,  unde-r  coverture  of  one  B.  B.,  her  husband,  who  is 
Btill  living,  and  in  every  respect  capable,  is  necessary  of  insti- 
tuting any  suit  at  law,  or  in  equity  on  her  behalf. 

Therefore,  etc.     {Conclude  as  in  No.  28.) 


(g)    Rev.  Stat.  (1874)  198:  Rev.  Stat.  (1877)  184. 


THE  DEFENSE   TO  A  SUIT.  131 

Plea  to  a  Bill  —  Infancy  —  Not  Administrator  —  Alien  Enemy. 

In  Illinois,  a  married  woman  may  sue  in  her  own  name, 
without  joining  the  husband,  in  matters  pertaining  to  her  sepa- 
rate property.  (A) 

No.  31.     Plea  of  infmicy  without  a  prochein  amy. 

{Commence  as  in  No.  S8,  ante,  page  119,  to  the  *.)  That  the 
complainant,  before  and  at  the  time  of  filing  his  said  l)ill,  in 
which  he  appears  as  sole  complainant,  was,  and  now  is,  an 
infant  under  the  age  of  twenty-one  years;  that  is  to  say,  of 
the  age  of years,  or  thereabouts. 

Wherefore,  etc.     {Conclude  as  in  No.  '28.) 

No  32.     Plea  that  the  defendant  never  was  administrator,  as 
alleged  in  hill. 

{Commence  as  in  No.  28,  ante,  page  119,  to  the  *.)  That 
he  is  not,  and  never  has  been,  administrator  of  the  goods  and 
chattels,  rights  and  credits,  which  were  of  the  said  E.  F., 
deceased,  in  the  said  bill  named,  as  the  complainant  in  his 
said  bill  has  untruly  alleged. 

Wherefore,  etc.     {Conclude  as  in  No.  28.) 

No.  33.     Plea  that  ths  complainant  is  an  alien  enemy. 

{Commence  as  in  No.  28,  ante,  p>age  119,  to  the  *.)  That 
the  complainant,  A.  B.,  is  alien,  born  of  foreign  parents,  and 
in  foreign  parts,  that  is  to  say,  at  Liverpool,  in  the  kingdom 
of  Great  Britain,  and  out  of  the  United  States  of  America, 
and  under  the  allegiance  of  the  Queen  of  Great  Britain,  who 
is  an  enemy  of  the  United  States,  and  to  whom  the  parents 
of  the  complainant  adhere ;  and  the  complainant  also  before, 
and  at  the  time  of  filing  his  said  bill  was,  and  now  is,  an 
enemy  of  the  United  States,  and  entered  into  the  United 
States  with  the  safe  conduct  of  the  government  of  the  United 
States,  and  has  not  been  made  a  subject  or  citizen  of  the 
United  States,  by  naturalization  or  otherwise. 

Wherefore,  etc.     {Conclude  as  in  No.  28.) 


(A)    Emerson  vs.  Clayton,  33  111.  493  ;  Cole  vs.  Van  Riper, 44  111.  58  ;  Man- 
ning vs.  Rixford,  lb.  139  ;  G.  B.  &  Q.  R.  R.  Co.  vs.  D'un7i,  53  111.  260. 


122  THE   DEFENSE   TO  A  SUIT. 

Plea  to  a  Bill  —  Want  of  Proper  Parties — Former  Suit  Pending. 

No.  SJi-.     Plea  of  want  of  proper  parties. 

{Commence  as  in  No.  28,  ante,  page  119,  to  the  *.)  That  as 
to  so  much  of  the  complainant's  bill  as  eoeks  an  account  from 
this  defendant,  as  executor  and  heir-at-law  of  E.  F.,  deceased, 
in  tlie  said  bill  named,  this  defendant's  late  brother,  for  what 
remains  due  and  owing  upon  the  bond  in  the  said  bill  men- 
tioned, bearing  date  on,  etc.,  and  payment  by  this  defendant  as 
such  executor  and  heir-at-law  of  the  said  E.  F.,  deceased,  as 
aforesaid,  of  what  he  found  due  on  taking  such  account ;  this 
defendant  doth  plead  thereto,  and  for  plea  says,  that  no  part 

of  the  sum  of dollars,  for  securing  the  repayment  whereof 

the  said  bond  was  executed,  was  paid  to,  or  secured  by  the 
said  E.  F.,  but  that  the  whole  was  paid  to  G.  H.,  in  the  said 
bond  and  in  the  said  bill  also  named,  and  received  by  him  for 
his  sole  use,  and  that  the  said  E.  F.  was  only  a  surety  for  the 
said  G.  H.,  and  that  the  complainant  afterwards  accepted  a 
composition  for  what  he  alleged  to  be  due  on  the  said  bond 
from  the  said  G.  H.,  without  the  privity  of  the  said  E.  F.  in 
his  lifetime,  or  this  defendant  since  the  death  of  the  said  E.  F., 
which  took  place  on  or  about,  etc.,  as  in  the  said  bill  men- 
tioned, since  which  no  demand  has  been  made  on  this  defend- 
ant for  any  money  alleged  to  be  due  on  the  said  bond ;  and 
that  the  said  G.  Et.  died  several  years  ago,  seized  of  consider- 
able real  estate,  and  also  possessed  of  a  large  personal  estate ; 
and  that  his  heir-at-law,  or  the  devisee  of  his  real  estate,  and 
also  the  representative  of  his  personal  estate,  ought  to  be,  but 
are  not  made  parties  to  the  said  bill. 

Therefore,  etc.     {Conclude  as  in  Form  No.  28.) 

No.  35.     Former  suit  pending . 

{Commence  as  in  No.  28,  ante,  page  119,  to  the  *.)     That 
-,  on,  etc.,  the  said  present  complainant  exhibited  his  bill 


of  complaint  in  this  honorable  court  against  this  defendant 
and  one  E.  F.  for  an  account  of  the  moneys  raised  by  the  sale 
of  the  goods  and  property  in  the  complainant's  present  bill 
mentioned,  and  claiming  such  shares  and  proportions  thereof, 
and  such  rights  and  interests  therein,  as  he  now  claims  by  his 
present  bill;  and  praying  relief  against  this  defendant  in  the 
same  manner,  and  for  the  same  matters,  and  to  the  same  effect 
as  the  complainant  now  prays  by  his  said  present  bill ;  and 
this  defendant  and 'said  E.  F.  appeared  and  put  in  their  answer 
to  the  said  former  bill,  and  the  complainant  replied  thereto  ;  and 
the  said  former  bill,  and  the  several  proceedings  in  the  said 


THE   DEFENSE   TO  A  SUIT.  123 

Plea  to  a  Bill  —  Limitations  —  Release,  etc. 

former  cause,  now  remain  depending,  and  as  of  record  in  this 
honorable  court,  the  said  cause  being  yet  undetermined  and 
undismissed. 

Wherefore,  eia.     {Conclude  as  in  No.  ^8.) 

A  plea,  to  a  bill  in  equity,  that  there  is  another  suit  pending 
in  the  same  court,  for  the  same  cause,  is  good  only  when  the 
whole  of  the  relief  sought  in  the  second  suit  is  attainable  in 
the  first,  {i) 

No.  36.     Plea  of  the  Statute  of  Limitations. 

{Coimnence  as  in  No.  '28,  ante,  page  119,  to  the  ■^.)  That  if 
the  complainant,  either  in  his  own  right  or  as  executor  of  E.  F., 
deceased,  in  the  bill  named,  ever  had  any  cause  of  suit  against 
him  this  defendant,  for  or  concerning  any  the  matters,  transac- 
tions, or  dealings  in  the  said  bill  of  complaint  mentioned, 
which  this  defendant  doth  in  no  sort  admit,  the  same  did 
accrue  or  arise  above years  before  the  said  bill  of  com- 
plaint was  exhibited  in  this  honorable  court ;  and  this  defend- 
ant further  for  plea  says,  and  doth  aver,  that  he  did  not  at  any 

time  within years  before  the  filing  of  the  complainant's 

said  bill  of  complaint,  ever  promise  or  agree  to  come  to  any 
account  for,  or  to  pay,  or  any  Avay  satisfy  the  complainant  any 
money,  for  or  concerning  any  the  matters,  transactions,  or 
dealings  in  the  complainant's  said  bill  of  complaint  charged  or 
alleged. 

Therefore,  etc.     [Conohule  a--^  in  No.  38.) 

No  37.     Plea  of  a  release,  'with  answer  in  support  of  the 

same. 

{Commence  as  in  No.  28,  ante,  2)age  119,  to  the  *.)  That  as 
to  so  much  and  such  part  of  the  complainant's  bill  as  seeks  an 
account  of  the  several  dealings  and  transactions  between  the 

complainant  and  this  defendant,  previously  and  up  to  the 

day  of ,  etc.,  and  prays  the  balance,  if  any,  which  shall  be 

found  due,  upon  taking  such  account,  from  this  defendant,  may 
be  paid  by  him  to  the  complainant ;  this  defendant  doth  plead 
thereto,  and  for  plea  says,  that  previous  to  the  filing  of  the  com- 
plainant's bill,  that  is  to  say,  on,  etc.,  the  complainant,  in  con- 
sideration of  the  sum  of— — -  dollars,  then  paid  to  him  by  tliis 

{i)   McKaig  vs.  Piatt,  34  Md.  249 


124  THE  DEFENSE  TO  A  SUIT. 

Plea  to  a  Bill  —  Plea  of  Stated  Account. 

defendant,  by  a  certain  writing  of  release,  under  his  hand,  and 
sealed  with  his  seal,  ready  to  be  produced  to  this  honorable 
court,  did  for  himself,  his  executors,  and  administrators,  reraise, 
release,  and  forever  quit-claim  unto  this  defendant,  his  heirs, 
executors  and  administrators,  among  other  things,  the  several 
matters  and  things  in  the  complainant's  bill  mentioned  and 
complained  of,  an  account  whereof  is  thereby  sought  against 
this  defendant  as  aforesaid,  and  all  suits  and  demands  whatso- 
ever, both  at  law  and  in  equity,  which  the  complainant  thus 
had,  or  might  thereafter  have  in  respect  of  the  several  dealings 
and  transactions,  matters  and  things,  in  the  said  bill  mentioned, 
or  any  of  them ;  and  this  defendant  avers,  that  the  said  release 
was  freely,  lairly  and  voluntarily  given  and  executed  by  the 
the  complainant,  on  the  day  the  same  bears  date  ;  and  that  the 
complainant  well  knew  the  nature  and  effect  thereof  previously 

to  giving  and  executing  the  same ;  and  that  the  sum  of 

dollars  so  paid  by  this  defendant  to  the  complainant  as  afore- 
said, was  a  full  and  fair  equivalent  for  any  demand  which  the 
complainant  could  or  might  have  against  this  defendant  in 
respect  of  the  several  matters  therein,  and  in  the  said  bill  also, 
mentioned,  or  any  of  them. 

Therelbre,  this  defendant  pleads  the  said  release  in  bar  to  so 
much  of  the  complainant's  bill  as  is  hereinbefore  particularly 
mentioned,  and  prays  the  judgment  of  this  honorable  court, 
whether  he  ought  to  be  compelled  to  make  any  further  answer 
to  so  much  of  the  said  bill  as  is  before  pleaded  unto. 

And  this  defendant  not  waiving  his  said  plea,  but  insisting 
thereon  for  answer  to  the  residue  of  the  said  bill,  and  in 
support  of  his  said  plea,  says  he  denies  that  the  said  release  was 
unduly  obtained  by  this  defendant  from  the  complainant,  or 
that  the  complainant  was  ignorant  of  the  nature  and  effect  of 
such  release,  or  that  the  consideration  paid  by  this  defendant 
to  induce  the  complainant  to  execute  the  same,  was  all  inade- 
quate to  the  just  claims  and  demands  of  the  complainant 
against  this  defendant,  in  respect  to  the  several  dealings  and 
transactions  in  the  said  bill  mentioned,  or  any  of  them ;  and 
this  defendant  denies,  etc.  etc.  {Here  insert  any  other  denial 
or  allegation  that  the  case  may  require^  and  add  affidavit  of 
the  truth  of  the  jjlcci  and  answer.) 

No.  38.     Plea  of  a  stated  account. 

{Commence  as  in  No.  28,  ante,  jjage  119,  to  the  *.)  That  as 
to  so  much  and  such  part  of  the  complainant's  bill  as  seeks  an 
account  of  and  concernino-  the  dealinfys  and  transactions  therein 


THE   DEFENSE   TO   A   bUIT.  125 

Plea  to  a  Bill  —  Plea  and  Answer. 

alleged  to  have  taken  place  between  the  complainant  and  this 

defendant,  at  any  time  before  the day  of ,  A.  D,  18 — , 

this  defendant  for  plea  thereto,  says,  that  on  the  said day 

of .  A.  D.  18 — ,  which  \/as  previously  to  the  said  bill  being 

filed,  the  complainant  and  this  defendant  did  make  up,  state, 
and  settle  an  account,  in  writing,  a  counterpart  whereof  was 
then  delivered  to  the  complainant,  of  all  sums  of  money,  which 
this  defendant  had  before  that  time,  by  the  order  and  direction, 
and  for  the  use  of  the  complainant  received^  and  of  all  matters 
and  things  thereunto  relating,  or  at  any  time  before  the  said 

day  of ,  A.  D.  18 — .  being  or  depending  between  the 

complainant  and  this  defendant,  and  in  respect  whereof  the 
complainant's  said  bill  of  complaint  has  since  been  filed ;  and 
the  complainant,  after  a  strict  examination  of  said  account,  and 
every  item  and  particular  thereof,  which  this  defendant  avers, 
according  to  the  best  of  his  knowledge  and  belief,  to  be  true 
and  just,  did  approve  and  allow  the  same,  and  actually  received 

from  this  defendant  the  sum  of dollars,  the  balance  of  the 

said  account,  which  by  the  said  account  apj)eared  to  be  justly 
due  to  him  from  this  defendant ;  and  the  complainant  there- 
upon, and  on,  etc.,  gave  this  defendant  a  receipt,  or  acquittance 
for  the  same,  under  his  hand,  in  full  of  all  demands,  and  which 
said  receipt  or  acquittance  is  in  the  words  and  figures  following, 
that  is  to  say  {Here  set  out  receipt  verbatim) ;  as  by  the  said 
receipt  or  acquittance  now  in  the  possession  of  this  defendant, 
and  ready  to  be  produced  to  this  honorable  court,  will  appear. 
Therefore,  etc.  {Conclude  as  in  the  last  precedent,  'varying 
the  conclusion  and  answer,  in  suppoi't  of  the  plea,  to  suit  the 
case.     Also,  add  affidavit  of  the  truth  of  the  plea.) 

JVo.  39.     Plea  to  part  and  answer  to  the  residue  of  hill. 

The  plea  of  C.  D.,  defendant,  to  part,  and  the  answer 
of  the  same  defendant  to  the  residue  of  the  bill  of 
complaint  of  A.  B.,  complainant. 
This   defendant,    to  all  the  relief  sought   by  the  said   bill, 
and  also,  to  all  the  discovery  thereby  sought,  except  the  discov- 
ery sought  by  or  in  respect  of  (so  much  of  the  said  bill  as 
prays  that  this  defendant  may  answer  and  set  forth,)  whether, 
etc.,  {here  the  language  of  the  interrogatories  which  it  is  neces- 
sary to  answer,  must  he  introduced^  this  defendant  does  plead 
in  bar,  and  for  plea  says,  etc.    {Here  set  out  the  p)lea.) 

All  of  which  matters  and  things  this  defendant  does  aver 
to  be  true,  and  does  plead  the  same  in  bar  to  the  whole  of  the 
said  bill,  except  such  part  of  the  discovery  thereby  sought  as 


126  THE   DEFENSE   TO  A  SUIT. 

Plea  to  a  Bill  —  Signing  —  Swearing  to  —  When  to  be  Filed. 

aforesaid ;  and  this  defendant  prays  the  judgment  of  this 
honorable  court,  whether  he  ought  to  be  compelled  to  make 
any  further  or  other  answer  to  so  much  of  the  said  bill  as  is 
hereby  pleaded  to,  and  he  prays  to  be  hence  dismissed  with 
his  costs. 

And  for  answer  to  such  parts  of  the  said  bill  as  are  excepted, 
this  defendant  says,  that,  etc.  {Here  insert  a/nswer  as  in  pre- 
cedents, under  the  head  of  answers.) 

Signing  of  plea. — A  plea  must  be  signed  by  the  party  as 
well  as  counsel ;  but  where  it  is  not  sworn  to,  the  signature  of 
counsel  is  sufficient,  [j) 

When  plea  must  he  sworn  to. — The  rule  is  inflexible  in 
chancery  proceedings,  that  a  plea  in  bar  of  matters  in  jpais 
must  be  sworn  to,  (k)  but  pleas  to  the  jurisdiction  of  the  court, 
or  indisability  of  the  person  of  the  complainant,  or  pleas  iu  bar 
of  any  matter  of  record,  or  of  matters  recorded,  as  of  a  record 
in  the  court  itself,  or  any  other  court,  need  not  be  on  oath.  (Z) 

In  all  cases  where  a  plea  is  accompanied  by  an  answer,  it 
must  be  put  in  upon  oath,  (m)  A  plea  must  be  verified  by  oath, 
although  the  complainant  has  expressly  waived  an  answer  from 
the  defendant  on  oath,  in)  If  it  is  not  sworn  to,  the  complain- 
ant may,  if  application  is  made  in  apt  time,  have  it  stricken 
from  the  files,  but  the  application  must  be  made  before  the 
argument  of  the  plea,  (o) 

When  to  te  filed. — A  plea  being  the  second  in  the  order  of 
pleading,  it  may  be  filed,  when  to  the  whole  bill,  at  any  time 
before  answering.  Under  a  general  rule  to  answer  by  a  certain 
day  in  term  time,  a  plea,  answer  or  demurrer  may  be  filed. 

(j)  1  Barb.  Ch.  Pr.  117  ;  Simes  vs.  Smith,  4  Mad.  366. 

(A)  Bunn  V3.  Eeegin,  3  Scam.  293 ;  Wall  vs.  Stubhs,  2  Vea.  &  B.  R.  854 ; 
vs.  Davies,  19  Ves.  81 ;  Eeartt  vs.  Corning,  3  Paige,  Ch.  R.  566. 

{I)    Mitf.  Eq.  PI.  247,  301 ;   Urlin  vs.  Hudson,  1  Vern.  333. 

(m)  Jefferson  vs.  Dawson,  3  Ch.  Cas.  208. 

(n)  Heartt  vs.  Corning,  3  Paige,  Ch.  R.  566. 

(p)  Wall  vs.  Stubhs,  2  Ves.  &  B.  R.  354 ;  Heartt  vs.  Corning,  3  Paige,  Ch. 
R.  566. 


THE   DEFENSE   TO  A  SUIT.  137 

Plea  to  a  Bill  —  Replication  to  —  Amendment,  etc. 

But  it  may  well  be  doubted  whether  it  should  be  so  held  as  to 
long  rules  expiring  in  vacation,  {p) 

Replication  to  plea. — If  the  complainant  regards  the  plea, 
though  good  in  form  and  substance,  not  true  in  point  of  fact, 
he  may  take  issue  upon  it  by  filing  a  replication,  and  pro- 
ceed to  examine  witnesses,  as  in  the  case  of  an  answer,  to 
disprove  the  facts  upon  which  it  is  endeavored  to  be  sup- 
ported, {q)  The  effect  of  filing  a  replication  to  a  plea  is,  that 
the  complainant  admits  the  plea  to  be  good,  and  the  truth  of 
the  matter  alleged,  is  the  only  thing  in  question.  (/')  When 
the  issue  is  thus  taken  upon  the  plea,  the  defendant  must 
prove  the  facts  it  sets  up.  (s)  If  he  succeeds  in  proving  the 
truth  of  the  matter  pleaded,  the  suit,  so  far  as  the  plea  extends, 
is  barred,  {i)  It  puts  in  issue  nothing  except  what  is  dis- 
tinctly averred  in  the  plea,  [u) 

Amendment  of  hill  after  plea. —  If  the  complainant  amends 
his  bill  after  plea  filed,  it  will  be  considered  as  an  admission 
of  the  validity  of  the  plea,  {v) 

Demurrer  to  plea  not  proper. — A  demurrer  to  a  defective 
plea  should  not  be  interposed.  The  proper  practice  is  to  set 
down  the  plea  for  hearing,  when  its  sufficiency  will  be  con- 
sidered, {w) 

Argument  of  plea. —  The  proceedings  upon  the  argument 
of  a  plea  are  nearly  the  same  as  those  upon  the  argument  of  a 
demurrer.     If  a  plea  is  supported  by  an  answer  upon  the  argu- 

(p)  Kilgour  vs.  Crawford,  51  111.  249 ;  Dunn  vs.  Keegin,  3  Scam.  292. 

(?)    Mitf.  Eq.  PI.  301-2;  1  Barb.  Ch.  Pr.  119;  4  Gilm.  57. 

(r)  lb. ;  Harris  vs.  Ingledew,  3  P.  Wms.  R.  95 ;  Daniels  vs.  Taggart,  1 
Gill  &  J.  R.  311. 

(s>    2  Ves.  R.  247 ;  Ord  vs.  Huddleston,  Dick.  R.  510. 

{t)  Wichalse  vs.  Short.  3  Bro.  P.  L.  558 ;  Hinde,  Pr.  225 ;  Msh  vs.  Miller, 
5  Paige,'€li.  R.  26  ;  Bogardiis  vs.  Trinity  Cliurch,  4  Paige,  Ch.  R.  178. 

{u)  Fish  vs.  Miller,  5  Paige,  Ch.  R.  26 ;  1  Barb.  Ch.  Pr.  119 ;  Bogardua 
vs.  Trinity  Church,  4  Paige,  Ch.  R.  178. 

(c)    Spencer  vs.  Bryan,  9  Ves.  R.  231 ;  1  Barb.  Ch.  Pr.  120. 

{w)    Lester  vs.  Stevens,  29  111.  155 ;  Thomas  vs.  Bra^hear,  4  Monr.  R.  65. 


128  THE   DEFENSE   TO  A  SUIT. 

Plea  to  a  Bill  — Effect  of  Allowing  Plea. 

ment  of  the  plea,  the  answer  may  be  read  to  counterprove 
the  plea ;  and  if  the  defendant  appears  not  to  have  sufficiently 
supported  his  plea  by  his  answer,  the  plea  must  be  overruled 
and  ordered  to  stand  for  an  answer  only,  {x)  And  where  a 
defendant  had  answered  to  an  original  bill,  which  was  after- 
wards amended,  whereu^^on  the  defendant  put  in  a  plea  to 
the  amended  bill,  the  complainant  was  allowed  to  read  the 
answer  to  the  original  bill  to  counterprove  the  plea  to  the 
amended  bill,  {y)  Upon  the  argument  of  a  plea,  every  fact 
stated  in  the  bill,  and  not  denied  by  the  avennents  in  the 
plea  and  by  the  answer  in  support  of  the  same,  must  be  taken 
as  true,  (s)  And  if  a  plea  is  set  down  for  argument  by  the 
complainant  without  replying  to  it,  the  matter  contained  in 
it  must  be  considered  as  true,  {a) 

Where  an  issue  is  taken  upon  a  plea,  and  the  truth  of  such 
plea  is  established  by  the  proofs,  the  bill  must  be  dismissed ; 
as  the  court,  in  that  stage  of  the  proceedings,  does  not  inquire 
or  decide  as  to  the  validity  of  the  matters  pleaded,  as  a  defense 
to  the  suit,  (b) 

A  plea,  upon  argument,  may  be  either  allowed  simply,  or 
the  benefit  of  it  may  be  saved  to  the  hearing ;  or  it  may  be 
ordered  to  stand  for  an  answer ;  or  it  may  be  overruled. 

Effect  of  allowing  the  plea. —  If,  upon  argument,  a  plea  is 
allowed,  it  is  thereby  determined  to  be  a  fiill  bar  to  so  much 
of  the  bill  as  it  covers,  if  the  matter  pleaded,  with  the  aver- 
ments necessary  to  support  it,  be  true.  If,  therefore,  the  plea 
is  allowed,  the  complainant  may  take  issue  on  the  plea  by 
replying  to  it,  on  payment  of  the  costs  of  the  hearing  there- 
upon, (c) 

If  the  complainant  files  a  replication  to  the  plea,  the  defend- 
ant will  be  obliged  to  prove  the  truths  of  the  fact  set  up  in  the 

(x)  Mitf.  Eq.  PI.  304 ;  Hildyard  vs.  Cressy,  3  Atk.  304  ;  1  Barb.  Ch.  Pr.  120 ; 
Story's  Eq.  PI.  §  697. 

(y)  lb.;  Hildyard  vs.  Cressy,  8  Atk.  R.  304. 

(s)  Bogardus  vs.  Trinity  Church,  4  Paige,  Ch.  R.  178. 

(a)  Executors  etc.  vs.  Roberts,  1.  Wash.  C.  C.  R.  320 ;  1  Barb.  Ch.  Pr.  121 

(6)  Dowes  vs.  McMichael,  6  Paige,  Ch.  R.  130. 

(c)  1.  Barb.  Ch.  Pr.  121  ;  Story's  Eq.  PI.  §  697. 


THE  DEFENSE  TO  A  SUIT.  129 

Plea  to  a  Bill  —  Saving  Benefit  at  the  Hearing. 

plea,  {d)  If  the  complainant  omits  to  file  a  replication  in  such 
a  case,  not  only  the  validity  of  the  plea  as  a  bar  is  admitted, 
but  the  truth  of  the  facts  set  up  in  it ;  and  of  course  the  suit 
is  at  an  end.  {e) 

If  the  plea  has  been  replied  to,  the  complainant  may,  if  he 
desires,  go  into  evidence  to  disprove  it ;  and  if  he  has,  in  his 
bill,  alleged  any  matter  which,  if  true,  may  have  the  effect  of 
avoiding  the  plea,  such  as  notice,  fraud,  etc.,  he  may  examine 
any  witnesses  he  may  have  to  support  his  allegation.  And 
where  the  plea  introduces  matters  of  a  negative  nature,  such 
as  denial  of  notice,  fraud,  etc.,  it  will  be  necessary  for  him,  in 
case  sufficient  is  not  admitted  by  the  answer  in  support  of  the 
plea,  to  show  the  existence  of  the  notice  or  fraud,  to  go  into 
evidence  in  support  of  the  affirmative  of  the  proposition,  {f) 

Saving  the  henefit  of  a  plea  to  the  hearing. — It  sometimes  hap- 
pens that  upon  the  argument  of  a  plea,  the  court  considers  that, 
although  so  far  as  then  appears,  it  may  be  a  good  defense,  yet 
there  may  be  matters  disclosed  in  evidence  which,  supposing 
the  matter  pleaded  to  be  strictly  true,  would  avoid  it.  In  such 
a  case  the  court,  in  order  that  it  may  not  preclude  the  question 
of  allowing  the  plea,  directs  that  the  benefit  of  it  shall  be  saved 
to  the  defendant  at  the  hearing,  {g) 

The  effect  of  an  order  for  this  purpose  is  to  give  the  com- 
plainant an  opportunity  of  replying  and  going  into  evidence 
without  overruling  the  plea.  (A)  And  when  the  benefit  of  the 
plea  is  reserved  to  the  hearing,  such  parts  of  the  bill  as  are 
covered  by  the  plea  are  not  to  be  answered,  {i)  and  neither  party 
recovers  cost  until  the  hearing,  {j  ) 

(d)  Mitf .  Eq.  PI.  302. 

(e)  1  Barb.  Ch.  Pr.  121. 

(/)  1  Barb.  Ch.  Pr.  121 ;  Eyere  vs.  Dolphin,  2  Ball  &  B.  K.  303 ;  Saunders 
vs.  Leslie,  2  Ball  &  B.  515. 

(g)  Mitf.  Eq.  PI.  303  ;  Astlep  vs.  Fountaine,  Finch,  R.  4;  1  Barb.  Ch.  Pr. 
121-2;   Story's  Eq.  PI.  §  696-700. 

{h)   Cooth  vs.  Jackson,  6  Ves.  12, 18. 

(i)    Gilb.  For.  Rom.  64. 

(j)    Heartt  vs.  Corning,  3  Paige,  Ch.  R.  566;  1  Barb.  Ch.  Pr.  122;  see 
Payne  vs.  Avery,  21  Mich.  524. 
9 


130  THE   DEFENSE   TO  A  SUIT. 

Plea  to  a  Bill  —  Standing  for  Answer  —  Overruling,  etc. 

Allowing  plea  to  stand  for  answer. — When  a  plea  is  per- 
mitted to  stand  for  an  answer,  it  is  determined  that  it  contains 
matter  which,  if  put  in  the  form  of  an  answer,  would  have 
constituted  a  valid  defense  to  some  material  part  of  the  matters 
to  which  it  is  pleaded  as  a  bar,  but  that  it  is  not  a  full  defense 
to  the  whole  matter  which  it  professes  to  cover,  or  that  it  is 
informally  pleaded,  or  is  improperly  offered  as  a  defense  by 
way  of  plea,  or  that  it  is  not  properly  supported  by  answer. 
But  a  plea  which  sets  up  no  valid  defense  to  any  part  of  the 
matter  it  professes  to  cover,  will  not  be  permitted  to  stand  for 
answer.  Qc) 

Overruling  plea. — If  upon  the  argument  the  court  is  of 
opinion  that  the  plea  cannot  under  any  circumstances,  be 
made  use  of  as  a  defense,  it  is  simply  overruled,  and  the 
complainant  may  have  his  costs.  (Z) 

If  at  the  hearing  the  plea  is  not  found  to  be  true,  it  will  be 
overruled  as  false,  and  the  complainant  will  be  entitled  to  a 
decree,  as  on  a  bill  taken  as  confessed.  But  in  such  a  case  the 
complainant  will  not  lose  the  benefit  of  an  answer,  if  a 
discovery  is  necessary,  (m) 

Courts  do  not  favor  a  plea  in  bar ;  but  the  overruling  of 
such  a  plea  does  not  deprive  the  defendant  from  insisting  on 
the  defense  in  his  answer,  {n) 

'^hen  plea  must  he  supported  hy  answer. — Where  there  is 
any  statement  or  charge  in  the  bill  which  afibrds  an  equitable 
circumstance  in  favor  of  the  complainant's  case,  against  the 
matter  pleaded,  such  as  fraud  or  notice  of  title.  That  state- 
ment or  charge  must  be  denied  by  way  of  answer,  as  well  as 
by  averments  in  the  plea,  {o) 

{k)  Orcutt  vs.  Orms,  3  Paige,  Ch.  R.  459  ;  Leacraft  vs.  Demprey,  4  Paige, 
Ch.  R.  124  ;  Mitf.  Eq.  PI.  303  ;  Lube's  Eq.  PI.  46  ;  1  Barb.  Ch.  Pr.  122;  Sellen 
VB.  Lewen,  3  P.  Wms.  R.  239  ;  Story's  Eq.  PI.  §  696-700. 

{T)    Story's  Eq.  PI.  §  699. 

(m)  Dows  vs.  McMichael,  2  Paige,  Ch.  R.  345  ;  Brownsword  vs.  Edwards, 
2  Ves.  Sr.  247. 

{n)  Piatt  vs.  Oliver,  1  McLean,  R.  295. 

\o)    1  Barb.  Ch.  Pr.  128  ;  Mitf.  Eq.  PI.  239, 244. 


THE   DEFENSE   TO   A  SUIT.  131 

Plea  to  a  Bill  —  When  to  be  Supported  by  Answer. 

In  general,  an  answer  in  support  of  a  plea  cannot  be 
required  in  those  cases  where  such  negative  averments  as 
those  above  stated  are  not  necessary.  When  the  defense  can 
be  made  by  a  jmre  plea,  that  is,  a  plea  which  merely  suggests 
matter  in  avoidance  of  the  complainant's  right  to  sue,  as  stated 
in  the  bill,  an  answer  in  support  of  the  plea  is  not  required. 
In  such  a  case,  the  defendant,  by  his  plea,  admits  the  complain- 
ant's case ;  and  so  full  and  complete  is  the  admission,  that  if, 
after  argument,  issue  be  joined  upon  the  truth  of  the  plea,  and 
the  plea  be  found  false,  there  is  an  end  to  the  dispute,  and  the 
complainant  is  entitled  to  a  decree  upon  this  implied  admission 
of  his  case.  (^) 

The  cases  in  which  it  is  necessary  that  a  plea  should  be  sup- 
ported by  answer  have  been  very  conveniently  divided  into : 
ji/rst^  those  where  the  complainant  admits  the  existence  of  a 
legal  bar,  and  chai-ges  some  equitable  circumstances  to  avoid  its 
effect ;  and,  second.,  those  where  the  complainant  does  not 
admit  the  existence  of  any  legal  bar,  but  states  some  circum- 
stances which  may  be  true  and  to  which  there  may  be  a  valid 
ground  of  plea,  together  with  other  circumstances  which  are 
inconsistent  with  the  substantial  validity  of  a  plea,  {q) 

An  answer  in  support  of  a  plea  is  no  part  of  the  defense. 
The  defense  is  the  matter  set  up  by  the  plea ;  the  answer  is 
that  evidence  which  the  complainant  has  a  right  to  require  and 
to  use,  to  invalidate  the  defense  made  by  the  plea ;  and  the 
complainant  is  entitled  to  make  use  of  it,  not  only  upon  the 
hearing  of  the  cause,  upon  the  issue  raised  by  the  plea,  after 
the  plea  shall  have  been  decided  to  be  a  good  bar  upon  argu- 
ment, but  upon  the  argument  of  the  plea  itself,  before  any 
evidence  can  be  given ;  {f)  for  the  purpose  of  counterproving 
the  plea,  by  reading  from  it  any  facts  or  admissions  which  may 
negative  the  matters  pleaded  or  averred  in  the  plea,  {s) 

(^)  1  Barb.  Ch.  Pr.  128 ;  Wigram  on  Disc.  36 ;  Wood  vs.  Strickland,  2 
Ves.  &  B.  158 ;  2  Dan.  Ch.  Pr.  99, 100  ;  Story's  Eq.  PI.  §  670. 

(g-)    1  Barb.  Ch.  Pr.  128 ;  Hare  on  Disc.  30 ;  Story's  Eq.  PI.  §  674-5. 
(r)     Mitf.  Eq.  PI.  244,  note  ;  Story's  Eq.  PI.  §  671 ;  Foley  vs.  Hill,  4  Mylne 
&  Craig,  475. 

(8)  Hildyard  vs.  Gressy,  8  Atk.  303 ;  Hony  vs.  Hony,  1  Sim.  &  Stu.  569 ; 
Story's  Eq.  PI.  §  672. 


132  THE   DEFENSE  TO  A  SUIT. 

Answer  to  a  Bill  —  Nature  of. 

The  answer  in  support  of  the  plea  being  no  part  of  the 
defense,  but  only  what  the  complainant  has  a  right  to  require, 
to  enable  him  to  avoid  that  defense,  it  follows  that  it  must  be 
full  and  clear ;  otherwise  it  will  not  support  the  plea ;  for  the 
court  will  intend  all  matters  alleged  in  the  bill,  to  which  the 
complainant  is  entitled  to  an  answer,  to  be  against  the  pleader, 
unless  they  are  clearly  and  fully  denied,  {t) 

But  although  an  answer  in  support  of  a  plea  is  required  to 
be  full  and  clear,  yet,  if  the  equitable  matters  charged  are  fully 
and  clearly  denied,  it  may  be  sufficient  to  support  the  plea, 
although  all  the  circumstances  charged  in  the  bill  may  not  be 
precisely  answered,  {u)  In  such  cases,  however,  the  complain- 
ant is  not  precluded  by  the  circumstances  of  the  court  having 
held,  upon  the  argument  of  the  plea,  that  the  charges  in  the 
bill  are  sufficiently  denied  to  exclude  intendment  against  the 
pleader,  from  afterwards  excepting  to  the  sufficiency  of  the 
answer,  in  any  point  in  which  he  may  consider  it  defective,  (v) 

"Where  the  complainant  waives  the  necessity  of  an  answer 
being  put  in  on  oath,  if  the  defendant  puts  in  a  plea  to  the 
bill,  he  need  not  support  it  by  answer,  (w) 


SECTION  V. 
ANSWER   TO    A   BILL. 

Nature  of. — "Where  the  case  stated  in  a  bill  is  not  such  as 
to  render  a  resort  to  a  demurrer  or  plea  necessary  or  advisable, 
or  if  either  of  these  methods  of  defense  has  been  adopted,  and 
the  demurrer  or  plea  overruled,  either  wholly  or  in  part,  the 
defendant,  unless  he  disclaims,  must  answer  fully  all  the 
material  matters  alleged  and  stated  in  the  bill.     He  is  not 

(«)  1  Barb.  Cli.  Pr.  129 ;  Mitf.  Eq.  PI.  244 ;  Hildyard  vs.  Oressy,  3  Atk. 
R.  303. 

(u)  Mitf.  Eq.  PL  299 ;  Waters  vs.  Olanxille,  Glib.  R.  184;  1  Barb.  CIi.  Pr. 
129. 

{v)  Id. 

{w)  Eeartt  vs.  Corning,  3  Paige,  Cb.  R.  566 ;  see  also  Story's  Eq.  Pr. 
§  681,  682. 


THE  DEFENSE  TO  A  SUIT.  133 

Answer  to  a  Bill  —  Nature  of. 

bouud,  however,  to  answer  allegations  which  are  purely  scan- 
dalous, impertinent,  immaterial  or  irrelevant ;  {a)  nor  anything 
which  may  subject  him  to  a  penalty,  forfeiture  or  criminal 
prosecution ;  (b)  but  if  the  defendant  relies  upon  this  objection, 
he  should  specially  set  it  up  as  a  ground  for  refusing  the  par- 
ticular discovery  in  his  answer,  (c)  Nor  is  he  bound  to  answer 
what  would  involve  a  breach  of  professional  confidence,  {d)  He 
is  not  compelled  to  discover  the  facts  respecting  his  own  title, 
but  merely  those  which  respect  the  title  of  the  complainant,  {e) 
In  each  of  these  cases,  if  the  defendant  does  not  think  proper  to 
defend  himself  from  a  discovery  by  a  demurrer,  or  by  a  plea, 
he  has  been  permitted  by  answer  to  insist  that  he  is  not  obliged 
to  make  the  discovery.  In  each  of  these  cases,  the  complain- 
ant may  except  to  the  defendant's  answer  as  insufficient ;  and 
upon  that  exception,  it  will  be  determined  by  the  court  whether 
the  defendant  is,  or  is  not,  obliged  to  make  the  discovery,  {f) 
The  answer  generally  traverses  the  allegations  of  the  bill,  or 
some  of  them,  and  alleges  other  facts  and  circumstances  to 
show  the  I'ights  of  the  defendant  in  the  subject  of  the  suit. 
Sometimes  it  admits  the  truth  of  the  case  made  by  the  bill, 
and  either  with,  or  without  stating  additional  facts,  submits  the 
questions  arising  upon  the  case  thus  made,  to  the  judgment  of 
the  court.  In  all  cases  where  relief  is  sought,  an  answer  con- 
sists of  two  parts ;  fi7'st,  the  defense  to  the  case  made  by  the 

(a)  Story's  Eq.  PI.  §  846  ;  Mitf.  Eq.  PI.  307,  note  (li),  316,  note  (q) ;  Davis 
vs.  Gollier,  13  Geo.  E.  485. 

(6)  Adams  vs.  Porter,  1  Cusli.  R.  171 ;  Phillips  vs.  Prevost,  4  Johns.  Ch. 
205;  Butler  vs.  Catling,  1  Root,  310;  Legoux  vs.  Waute,  3  Har.  &  J.  184; 
Brockway  vs.  Copp,  3  Paige,  Cli.  R.  589  ;  Wolfe  vs.  Wolfe,  2  Har.  &  G.  383 ; 
Hayes  vs.  Caldwell,  5  Gilm.  35. 

(c)  Adams  vs.  Porter,  1  Cusli.  171 ;  Story's  Eq.  PL  §  846  ;  Sloman  vs. 
Kelly,  3  Younge  &  Coll.  673. 

{d)  Story's  Eq.  PI.  §  846  ;  Strafford  vs.  Rogan,  2  Ball  &  Beatt.  R.  164; 
Oreenough  vs.  Gaskell,  1  Mylne  &  Keen,  99  ;  Jones  vs.  Pugh,  12  Sim.  470 ; 
1  Greenl.  Ev.  §  237  ;  Phillips  vs.  Prevost,  4  Johns.  Ch.  R.  205  ;  Foss  vs.  Haynes, 
31  Maine,  81 ;  Leggett  vs.  Postlcy,  2  Paige,  Ch.  599. 

{e)  Story's  Eq.  PI.  §  846,  572,  825  ;  Hare  on  Disc.  268-273  ;  Wigram  on 
Disc.  21,  23,111,  113.  147-149,  195,  196,  1st  ed. ;  Id.  261-346,  2d  ed.;  Story  vs. 
Randall,  17  111.  467. 

(/)   Mitf.  Eq.  PI.  307,  308  ;  Story's  Eq.  PI.  §  846. 


134  THE   DEFENSE   TO   A   SUIT. 

Answer  to  a  Bill  —  Nature  of. 

bill,  and,  second,  the  response  of  the  defendant  to  the  interro- 
gatories of  the  coniplainant.  {g) 

Where  a  defendant  submits  to  answer,  he  must  make  a  full, 
frank  and  explicit  disclosure  of  all  matters  material  or  neces- 
sary to  be  answered,  with  all  their  material  circumstances, 
whether  resting  within  his  own  knowledge,  or  upon  his  in- 
formation and  belief,  (A)  or  he  must  deny  all  knowledge  with 
regard  to  it.  If  he  has  information,  aside  from  the  bill,  he 
must  state  his  belief.  (^)  If  the  defendant  has  no  information 
on  the  subject,  he  must  state  that  he  has  no  information,  or  is 
utterly  ignorant  of  the  fact ;  {j)  and  if  the  information  sought 
is  within  his  reach,  he  is  bound  to  obtain  it,  and  state  it  in  his 
answer.  {Jc)  It  will  not  be  sufficient  to  allege  that  a  third  per- 
son who  is  interested  in  the  suit,  can  prove  the  fact  sought 
to  be  discovered.  (?) 

A  fact  alleged  in  the  bill,  and  admitted  in  the  answer,  is 
established ;  but  every  fact  alleged  in  the  answer,  in  avoid- 
ance of  such  fact,  must  be  proved  like  a  plea,  if  the  answer 
is  traversed,  (m)  And  where  replication  has  been  filed,  allega- 
tions in  the  answer  not  responsive  to  anything  in  the  bill,  can- 
not benefit  the  defendant  at  the  hearing ;  [n)  and  if  the  answer 

ig)    Barton's  Suit  in  Eq.  106. 

{h)  Dan.  Cb.  Pr.  487 ;  Barton's  Suit  in  Eq.  106  ;  Hagthorp  vs.  Hook,  1 
Gill  &  J.  270;  Bank  of  Utica  vs.  Messereau,  7  Paige,  Ch.  R.  517;  Super- 
visors etc.  vs.  M.  &  W.  B.  B.  Co.  21  111.  365 ;  Woods  vs.  Morrell,  1  Johns. 
Ch.  R.  103  ;  Devereaux  vs.  Cooper,  11  Vt.  103. 

(i)  Devereaux  vs.  Cooper,  11  Vt.  103  ;  Bradford  vs.  Geiss,  4  Wash.  C.  C. 
R.  513 ;  Brooks  vs.  Byam,  1  Story,  226  ;  Smith  vs.  Lasher,  5  Johns.  Ch. 
R.  247 ;  Tradesman's  Bank  vs.  Hyatt,  2  Edw.  Ch.  195 ;  Norton  vs.  Warren, 
3  Edw.  Ch.  106  ;  Bobinson  vs.  Woodgate,  3  Edw.  Ch.  422  ;  Neat  vs.  Hag- 
thorp, 3  Bland,  551 ;  Bailey  vs.  Wilson,  1  Dev.  &  Bat.  Ch.  182 ;  Sloan  vs. 
Little,  3  Paige,  C.  R.  103  ;  Champlin  vs.  Champlin,  2  Edw.  Ch.  362 ;  Bohert- 
8on  vs.  Bingley,  1  McCord,  Ch.  333 ;  King  vs.  Bay,  11  Paige,  Ch.  R.  235 ; 
Walker  vs.  Walker,  3  Kelly,  302 ;  Smith  vs.  Loomis,  1  Halst.  Ch.  N.  J.  60 ; 
Jones  vs.  Hawkins,  3  Ired.  Eq.  R.  110. 

( j)    Kittredge  vs.  Claramount  Bank,  1  W.  &  M.  244. 

(A)    Swift  vs.  Swift,  13  Geo.  140. 

(?)     Bell  vs.  Pomeroy,  4  McLean,  57. 

(m)  McDonald  vs.  McDonald,  16  Vt.  630. 

{n)    Wakeman  vs.  Oroiier,  4  Paige,  Ch.  R.  23. 


,._  ,J». 


THE  DEFENSE   TO   A   SUIT.  135 

Answer  to  a  Bill  —  Nature  of. 

18  defective  or  evasive,  it  is  a  ground  of  exception,  but  not  for 
an  implied  conclusion  against  the  defendant,  (o) 

A  mere  general  denial  of  confederacy  and  fraud,  usual  in 
an  answer,  is  not  sufficient,  where  particular  acts  of  fra.ua  are 
charged  in  the  bill ;  {p)  and  a  demurrer  to  a  bill  containing 
such  charges  would  be  overruled.  (<^) 

Where  the  defendant,  in  his  answer,  admits  facts  which  render 
the  transaction  in  question  legally  or  constructively  fraudulent, 
a  general  denial  of  fraud  is  unavailing ;  (r)  and  the  answer  must 
positively  and  directly  deny  the  allegations  of  the  bill.(s)  If 
an  answer  is  held  to  be  insufficient,  it  is  treated  as  no  answer; 
and  if  the  defendant  neglects  to  make  a  sufficient  answer,  as 
ordered,  the  bill  may  be  taken  p7'o  confesso,  and  a  final  decree 
rendered,  (t) 

When  a  bill  charges  the  defendant  with  notice  of  a  par- 
ticular fact,  an  answer  must  be  given  without  a  special  inter- 
rogatory ;  but  a  defendant  is  not  bound  to  answer  an  inter- 
rogatory not  warranted  by  the  charges  in  the  bill,  (u)  and 
what  is  responsive  to  a  bill  in  the  answer,  is  to  be  determined 
by  the  bill,  and  not  by  the  interrogatories ;  (v)  and  where 
the  defendant  pleads  the  statute  of  limitations  in  answer  to 
a  bill  in  equity,  he  must  answer  all  the  charges  in  the  bill 
which  may  avoid  the  bar,  by  showing  a  new  promise  ;  but 
he  need  not  answer  the  original  cause  of  action,  {w)  The 
rule  for  determining  whether  an  answer  to  any  particular  aver- 
ment in  a  bill  is  necessary,  is  to  ascertain  whether  it  is  material 
to  the    complainant    to    enable  him   to  obtain  the   relief  he 

(o)  Blaisdell  vs.  Stevens,  16  Vt.  179 ;  Phillips  vs.  Overton,  4  Hey.  291 ; 
Eq.  Draft.  563. 

[p)  Fellows  vs.  FelloiBS,  4  Cowen,  682  ;  Bailey  vs.  Wright,  2  Bond,  181. 

{q)  Burnley  vs.  Jeffersonville,  3  McLean,  336 ;  see  also  Lewis  vs.  Baird,  3 
McLean,  56  ;  Gray  vs.  Began,  23  Miss,  Cusli.  304. 

(r)    Hawley  vs.  Cramer,  4  Cowen,  717;   Wood  vs.  Mann,  1  Sumner,  506. 

(s)     Taylor  vs.  Luther,  2  Sumner,  228  ;  Pettit  vs.  Candler,  3  Wend.  618.. 

{t)    Buckingham  vs.  Peddicord,  2  Bland,  447. 

{u)  Mechanics'  Bcmk  vs.  Lynn,  1  Pet.  376;  Brooks  vs.  Byam,  1  Story,  R.. 
226 ;  Methodist  E.  Church  vs.  Jaques,  1  Jolins.  Ch.  R.  65. 

(«)    McDonald  vs.  McDonald,  16  Vt.  630. 

{w)   Chapin  vs.  Coleman,  11  Pick.  331. 


136  THE  DEFENSE   TO  A  SUIT. 

Answer  to  a  Bill  —  Exceptions  to  —  Fraud,  how  Alleged. 

seeks ;  {x)  a  court  will  compel  an  answer  to  all  the  allega- 
tions of  a  bill  tliat  require  proof,  {y) 

A  defendant  shall  be  at  liberty,  by  answer,  to  decline  answer- 
ing any  interrogatory,  or  part  of  an  interrogatory,  from  answer- 
ing which  he  might  have  protected  himself  by  demurrer  ;  and 
he  shall  be  at  liberty  so  to  decline,  notwithstanding  he  shall 
answer  other  parts  of  the  bill  from  which  he  might  have  protected 
himself  by  demurrer,  (s) 

If  the  defendant  desires  to  raise  the  objection  to  the  bill, 
that  the  complainant  has  an  adequate  remedy  at  law,  he  should 
do  so  by  demurrer,  or  at  least  it  should  be  specially  relied  on  in 
the  answer.  The  objection  cannot  be  raised  for  the  first  time 
at  the  hearing,  (a) 

The  Illinois  Chancery  Practice  Act  of  1872  (b)  requires  every 
defendant  to  answer  fully  all  the  allegations  and  interrogatories 
of  the  complainant,  whether  an  answer  on  oath  is  waived  or 
not,  except  such  as  are  not  required  to  be  answered,  by  reason 
of  exceptions,  plea  or  demurrer  thereto  allowed. 

And  "  on  the  coming  in  of  any  answer,  the  complainant 
may,  by  leave  of  court,  exhibit  and  file  further  interroga- 
tories, to  be  answered  by  the  defendant  withiu  such  time 
as  shall  be  fixed  by  the  court." 

JSxceptions  to  answers  —  When  to  be  filed. — All  exceptions 
to  answers  or  to  interrogatories  exhibited,  shall  be  filed  within 
Buch  time  as  the  court  may  direct,  and  be  argued  at  such 
time  as  the  court  may  appoint,  (c)  Exceptions  to  answers  will 
be  considered  in  a  future  chapter,  {d) 

Fraud,  how  alleged. — If  a  defendant  wishes  to  rely  upon  a 
matter  of  fraud  on  the  part  of  the  complainant,  the  circum- 

{x)  Batterson  vs.  Ferguson,  1  Barb.  490. 

{y)  Stacy  vs.  Randall,  17  111.  467. 

(z)  Rule  44,  Rules  of  Pr.  C.  E.  of  U.  S.  1870. 

(a)  Tarhell  vs.  Bcnoman,  103  Mass.  341  ;  Greeli/  vs.  Bay  State  Brick  Go. 
X03  Mass.  514. 

(b)  B'v.  Stat.  (1874)  201;  Rev.  Stat.  (1877)  187. 

(c)  ]h. 

'{(1)    Post,  ch.  viii,  p.  157. 


THE   DEFENSE  TO  A  SUIT.  137 

Answer  to  a  Bill  —  Mode  of  Answering. 

stances  should  be  fully  and  specifically  stated ;  {e)  as  no  pre- 
Bumption  is  to  be  indulged  in  favor  of  an  answer,  any  more 
than  in  other  pleading.  (/') 

Mode  of  ansicering.  — An  answer  is  the  most  usual  method 
of  defending  a  bill  in  chancery,  and  it  may  be  put  in  either  to 
the  whole  bill,  or  to  such  parts  of  it  as  are  not  covered  by 
demurrer  or  plea.  It  is  capable  of  embracing  more  circum- 
stances than  a  plea,  and  for  this  reason  may  be  used  with  much 
greater  propriety  in  cases  where  the  defendant  is  not  anxious  to 
prevent  a  discovery,  although  the  plea  might  be  a  complete 
bar.  But  where,  by  introducing  additional  circumstances,  he 
has  a  good  opportunity  of  showing  his  case  in  a  more  favorable 
•light,  the  answer  is  the  best  mode  of  defense,  {g) 

An  answer  has  a  double  purpose ;  f/rst,  that  of  answering 
the  complainant's  case  as  made  by  the  bill ;  and,  second,  that  of 
stating  to  the  court  the  nature  of  tlie  defense  upon  which  the 
defendant  means  to  rely ;  and  in  this  respect  it  fulfills  the  duty 
of  a  plea,  or  a  series  of  pleas,  either  denying  facts  upon  which 
the  complainant's  equity,  as  stated  in  the  bill,  arises,  or  by 
confessing  such  facts,  and  avoiding  them  by  the  introduction 
of  some  new  matter,  from  which  contrary  inferences  may  be 
drawn.  The  conclusions  of  law  from  the  facts  stated  should 
not  be  stated.  The  facts  intended  to  be  relied  on  should  be 
clearly  and  succinctly  alleged ;  and  the  inference  of  law  from 
them  should  be  left  to  the  court  after  argument.  The  com- 
plainant may  set  up  any  number  of  defenses  in  his  answer,  as 
a  consequence  of  the  same  state  of  facts,  which  his  case  will 
allow,  or  ingenious  counsel  can  suggest,  but  the  defenses  must 
be  consistent  with  each  other.  (A)  If  they  are  inconsistent,  or 
alternative,  they  are  bad,  {i)  and  the  result  will  be  to  deprive 

(e)  Fitzpatri'zk  vs.  Beatty,  I  Gilm.  454;  Mechanics'  Bank  vs.  Levy,  1 
Edw.  Ch.  316. 

(/)   Mahar  vs.  O'Hara,  4  Gilm.  424. 

(g)    1  Barb.  Ch.  Pr.  130. 

{1i)  Stone  vf*.  Moore,  26  111.  165;  Crnig  vs.  People  eic.  47  111.  4S7;  2 
Anst.  397,  38G  ;  McCle.  317  ;  2  Dan.  Cli.  Pr.  81-4^816. 

(i)    Jems  College  vs.  OiUhs,  1  Younge  &  Coll.  145  ;  6  Price,  504. 


138  THE   DEFENSE   TO   A   SUIT. 

Answer  to  a  Bill  —  Frame  of  Answer  —  May  be  Joint. 

him  of  the  benefit  of  either,  and  to  entitle  the  complainant  to 
a  decree.  (/) 

The  defendant  may,  in  his  answer,  relj  on  any  matter  which 
shows  that  the  complainant  is  not  entitled  to  the  relief  he 
claims  by  his  bill.  If  he  succeeds  in  establishing  such  a 
defense,  there  will  be  a  denial  of  the  relief  sought,  and  a  dis- 
missal of  the  bill.  The  answer,  however,  can  be  used  only 
for  the  purpose  of  defense.     It  cannot  be  used  for  relief. 

Affirmative  relief  not  allowed  on  a/nswer. — No  affirmative 
relief  can  be  granted  to  a  defendant  on  an  answer  alone.  To 
obtain  such  relief  he  must  exhibit  his  cross  bill.  (^) 

Frame  of  an  answer. — An  answer  always  begins  with  its 
title,  specifying  of  which  of  the  defendants  it  is  the  answer, 
and  the  names  of  the  complainants  in  the  suit  in  which  it  is 
filed  as  an  answer,  (f)  It  is  irregular,  and  may  be  rejected, 
if  it  is  not  properly  entitled,  and  does  not  show  what  bill  it 
purports  to  answer,  (m) 

Answers  may  he  joint. — Two  or  more  defendants  may  join 
in  the  same  answer,  and  where  their  interests  are  the  same, 
and  they  appear  by  the  same  solicitor,  they  ought  to  do  so, 
unless  some  good  reason  exists  for  their  answering  sepa- 
rately ;  {n)  for  otherwise  the  non-joinder  may  affect  them  in 
the  matter  of  the  costs  at  the  final  hearing.  (<?)  It  may,  there- 
fore, be  stated  as  a  general  rule,  that  the  defendants  should 
answer  jointly,  unless  their  interests  are  diiferent.  {p) 

ij)    2  Dan.  Ch.  Pr.  343. 

{k)  Turleton  vs.  Vietes,  1  Qilm.  470 ;  Edwards  vs.  Helm,  4  Scam.  143  ; 
McConnell  vs.  Hodson,  2  Gilm.  640  ;  Mason  vs.  McOirr,  28  111.  322 ;  McCagg 
vs.  Heacock,  42  111.  153  ;  Banna  vs.  Ratekin,  43  111.  462  ;  Tittsworth  vs.  Stout, 
49  111.  78 ;  Conwell  vs.  MeCowen,  53  111.  363  ;  Eowett  vs.  Selhy,  54  111.  151. 

{I)     Coop.  Eq.  PI.  323  ;  Story's  Eq.  PL  §  869. 

(m)  Supervisors  Fulton  Co.  vs.  M.  &  W.  R.  R.  Co.  21  111.  365 ;  Peiters  vs. 
Tfiompson,  Coop.  249  ;  Griffiths  vs.  Wood,  11  Ves.  62. 

(n)  Van  Sandon  vs.  Moore,  1  Russ.  441  ;  2  Dan.  Cli.  Pr.  Ch.  15,  §  2, 
pp.  265,  266  ;  Story's  Eq.  PI.  §  869. 

(o)    2  Dan.  Cb.  Pr.  265,  266. 

(p)  Story's  Eq.  PI.  §  869  ;  Mitf.  Ch.  PL  313,  314 ;  Griffiths  vs.  Wood, 
11  Ves.  62. 


THE  DEFENSE  TO   A  SUIT.    •  139 

Answer  to  a  Bill  —  Frame  of  Answer. 

The  answer  of  joint  defendants  need  not  be  joint  and 
several,  {g) 

One  defendant  may  answer  by  adopting  tlie  answer  of  his 
co-defendant ;  {r)  and  in  a  bill  against  husband  and  wife  a 
joint  answer  should  be  put  in,  but  if  the  wife  refuses  to  join, 
the  husband  may  answer  separately,  {s) 

The  answer  is  entitl>id,  ".The  answer  of  C.  D.,  defendant,  to 
the  bill  of  complaint  of  A.  B.  the  complainant."  {t)  After 
the  title  of  the  answer,  it  pi'oceeds  to  reserve  to  the  defendant 
all  advantages  which  might  be  taken  by  exception  to  the  bill ; 
a  form  which  is  intended  to  prevent  a  conclusion  that  the 
defendant,  having  submitted  to  answer  the  bill,  admits  every- 
thing, which  by  his  answer  he  does  not  expressly  controvert, 
and  especially  such  matters  as  he  might  have  objected  to  by 
demurrer  or  by  plea,  {u)  It  will  not  however,  in  general,  have 
that  effect,  (v)  The  substance  of  the  answer  then  follows,  in 
which  the  matters  of  the  bill,  with  the  interrogatories  founded 
thereon,  are  answered,  one  after  the  other,  together  with  such 
additional  matter,  as  the  defendant  thinks  necessary  to  bring 
forward  his  defense,  either  for  the  purpose  of  qualifying,  or  of 
adding  to,  the  case  made  by  the  bill,  or  of  stating  a  new  case 
on  his  own  behalf,  {w)  This  is  followed  by  a  general  denial  of 
all  the  unlawful  combinations  charged  in  the  bill,  and  of  all 
other  matters  therein  contained,  and  not  specially  traversed  or 
admitted. 

To  so  much  of  the  bill  as  is  material  and  necessary  for 
the  defendant  to  answer,  he  must  reply  directly,  without  eva- 
sion, and  not  by  way  of  negative  pregnant.  He  must  not 
answer  the  charge  merely  literally,  but  he  must  confess  or 
traverse  the   substance  of  each    change    positively  and  with 


(g)  Dams  vs.  Davidson,  4  McLean,  136 ;  Masterson  vs.  Craig,  5  Litt.  39. 

(r)  Binney's  Case,  2  Bland,  99. 

(s)  1  Paige,  Ch.  R.  421 ;  RoUns  vs.  Abraham,  1  Halst.  Ch.  N.  J.  16  ;  Id.  61. 

{t)  2  Dan.  Ch.  Pr.  266  ;   Story's  Eq.  PI.  §  870. 

{u)  Coop.  Eq.  PL  323 ;  Story's  Eq.  PI.  §  872,  870 ;  Mitf.  Eq.  PI.  313,  614  ; 
Griffith  vs.  Wood,  11  Ves.  62. 

(v)  Id. ;  Story's  Eq.  PI.  §  694,  870  ;  Beame's  PI.  in  Eq.  46,  47. 

(u>)  Coop.  Eq.  PI.  323-325  ;  Mitf.  Eq.  PI.  313-315  ;  Story's  Eq.  PI.  §  870. 


140  THE  DEFENSE   TO  A  SUIT. 

Answer  to  a  Bill  —  Swearing  to. 

certainty.  Particular  and  precise  charges  must  be  answered 
particularly  and  positively,  and  not  in  a  general  manner,  even 
though  the  general  answer  may  amount  to  a  full  denial  of  the 
charge,  {x)  But  if  any  of  the  particular  inquiries  in  the  bill 
are  as  to  matters  which  are  totally  immaterial  to  the  case,  the 
defendant  need  not  answer  them,  (y) 

If  the  charge  in  the  bill  embraces  several  particulars,  the 
answer  should  be  in  the  disjunctive,  denying  each  particular ; 
or  admitting  some  and  denying  the  others  according  to 
fact,  (s) 

It  may  be  observed,  that  the  general  rule  that  nothing  is  to 
be  presumed  in  favor  of  a  pleading,  is  applicable  to  an  answer 
in  chancery,  {a) 

Swearing  to  answer. — The  statute  of  Illinois  requires  every 
answer  to  be  verified  by  an  oath  or  afiirmation,  except  where 
the  complainant  waives  the  oath.  Where  the  bill  is  for  dis- 
covery only,  the  oath  or  aflBrmation  cannot  be  waived.  (J) 

Where  the  oath  is  waived  in  the  bill,  it  would  be  regarded  as 
an  improper  practice,  for  a  solicitor  to  put  in  an  answer  under 
oath,  (c) 

An  answer  filed  without  being  sworn  to,  may  be  treated  as  a 
valid  answer  by  the  complainant,  and  in  that  case  will  have 
the  same  eflfect  in  favor  of  the  defendant  as  if  sworn  to.  (d) 

(x)  Woods  vs.  Morrell,  1  Johns.  Ch.  E.  103 ;  Stacy  vs.  Randall,  17  111.  467  ; 
Parkinson  vs.  Truesdale,  3  Scam.  369 ;  Taylor  vs.  Luther,  3  Sumner,  228  ; 
6  Ves.  792 ;  3  Litt.  80 ;  1  Sim.  &  Stu.  235. 

{y)  1  Barb.  Ch.  Pr.  136 ;  Daniel  vs.  Bishop,  13  Price,  15. 

(e)  Davis  vs.  Mapes,  2  Paige,  Ch.  R.  105. 

{a)  Maha/r  vs.  O'Hara,  4  Gilm.  424. 

[h)  Rev.  Stat.  (1874)  201;  Rev.  Stat.  (1877)  187;  Moore  vs.  Hunter,  1 
Gilm.  317;   Willis  vs.  Henderson,  4  Scam.  14;  Harris  vs.  Reese,  5  Gilm.  212. 

(c)  Willenhorg  vs.  Murphy,  36  111.  344;  Wallwork  vs.  Derby,  40  111.  527; 
Moore  vs.  Hunter,  1  Gilm.  317;  Hopkins  vs.  Granger,  52  III.  504. 

{d)  Fulton  Bank  vs.  Beach,  3  Paige.  Ch.  R.  307;  Confee  vs.  Daivson,  3 
Bland,  264;  Moore  vs.  Hunter,  1  Gilm.  317;  Reed  vs.  Warner,  5  Paige,  Ch. 
R.  650;  Denison  vs.  Bassford.  7  Paige,  Ch.  R.  370;  Stevenson  vs.  Mathers, 
67  III.  123;  Adlard  vs.  Adlard,  65  111.  212. 


THE   DEFENSE   TO   A   SUIT.  141 

Answer  to  a  Bill  —  Waiver  of  Oath. 

If  the  affidavit  is  insufficient,  objection  must  he  taken  before 
the  final  hearing,  [e)  otherwise  it  is  a  waiver  of  the  objection,  {f) 

Where  the  affidavit  is  waived,  the  answer  must,  notwith- 
standing, be  signed ;  {g)  and  if  the  interests  of  the  defendants 
are  separate  and  distinct,  an  answer  on  oath  may  be  waived  as 
to  one  defendant  without  such  waiver  as  to  others.  {Ji) 

The  defendants  may  answer  jointly,  or  jointly  and  severally, 
or  separately;  each  defendant  must,  however,  swear  to  his 
answer,  or  it  will  be  no  answer  as  to  him.  (t) 

Waiver  of  oath. — The  statute  of  Illinois  provides  that,  when 
a  bill,  supplemental  bill,  bill  of  review,  or  cross-bill,  shall  be 
filed  in  a  court  of  chancery,  other  than  for  discovery  only,  the 
complainant  may  waive  the  necessity  of  the  answer  being  made 
on  the  oath  of  the  defendant,  defendants,  or  any  of  them ;  and 
in  such  cases,  the  answer  may  be  made  without  oath,  and  shall 
have  no  other  or  greater  force  as  evidence  than  the  bill,  {j)  If 
the  complainant  waives  an  answer  under  oath,  under  this  section 
of  the  statute,  he  must  waive  it  to  the  whole  bill.  And  after 
the  defendant  has  answered  the  original  bill  on  oath,  the  com- 
plainant cannot  avoid  the  effect  of  such  answer  by  filing  an 
amended  bill  waiving  the  oath.  The  answer  under  oath  to  the 
original  bill  would  still  be  evidence  on  the  hearing  of  the 
cause,  so  far  as  responsive  to  the  bill.  (Jc) 

Where  an  answer  is  not  under  oath,  it  is  a  mere  pleading, 
serving  only  to  make  up  an  issue ;  {V)  and  swearing  to  an  an- 
swer, when  the  oath  is  waived,  will  give  it  no  greater  effect  on 
the  hearing  than  when  not  sworn  to ;  (m)  but  the  complainant 

(e)    Bate  vs.  McLaugJiUn,  1  A.  K.  Marsh.  207. 

(/)  Oeizer  vs.  Burk,  3  S.  &  M.  439. 

dg)    Kimball  vs.  Ward,  Walk.  Ch.  439. 

(h)  Bulkley  vs.  Van  Wyck,  5  Paige,  Ch.  536 ;  Morse  vs.  Hovey,  1  Sandf. 
Ch.  R.  187. 

(i)    Rev.  Stat.  (1877)  186. 

{k)    Wylder  vs.  Crane,  53  111.  490;  Jefferson  vs.  Ketmard,  77  111.  246. 

[l)  Chambers  vs.  Rowe,  36  111.  171;  Willenhorg  vs.  Murphy,  Id.  344'; 
Wallwork  vs.  Derby,  40  111.  527;  Hopkins  vs.  Granger,  52  111.  504;  Willis  vs. 
Henderson,  4  Scam.  13. 

(w)  Moore  vs.  Hunter,  1  Gilm.  317;  Andrews  vs.  Knox  Co.,  70  111.  65. 


142  THE  DEFENSE   TO  A  SUIT. 

Answer  to  a  Bill  —  Effect  of  Sworn  Answer,  etc. 

may  avail  himself  of  any  admission  and  allegation  therein  to 
make  out  his  case,  (n) 

Effect  of  sworn  answer  as  evidence. —  If  an  answer  is 
required  under  oath,  and  is  responsive  to  the  allegations  of  the 
bill,  it  must  be  received  as  true,  unless  it  is  overcome  by  evi- 
dence amounting  to  the  testimony  of  two  witnesses,  {o)  Such 
answer  is  not  equal  to  two  witnesses,  but  it  must  be  overcome 
by  two  witnesses,  or  by  one  witness  and  strong  corroborating 
circumstances,  {p)  It  is,  however,  only  where  the  defendant 
states  facts  within  his  knowledge,  that  his  answer  must  be 
overcome  by  evidence  equivalent  to  the  testimony  of  two 
witnesses,  {q) 

When  answer  is  evidence  against  a  co-defendant. — The 
answer  of  one  defendant  cannot  be  read  in  evidence  against 
another,  except  in  particular  cases,  as  where  such  defendants 
are  partners,  or  where  one  has  acted  as  the  agent  of  the  other 
in  any  transaction  to  which  the  answer  may  relate,  and  the 
agency  or  partnership,  at  the  time  of  filing  the  answer,  still 
exists,  {r) 

Answer  of  deceased  ancestor  as  evidence. — The  answer  of  a 
deceased  ancestor  may  be  read  Jn  evidence  against  the  heirs  or 
devisees,  where  they  claim  under  him  in  an  action  brought  for 
the  same  subject  matter,  {s) 

Admissions  in  answer. — Where  a  fact  is  alleged  in  the  bill, 
and  admitted  by  the  answer,  the  admission  is  conclusive,  and 

{n)  Smith  vs.  Clarke,  4  Paige,  Ch.  R.  368 ;  Union  Bank  vs.  Oeary,  5  Pet. 
99,  110-112  ;  1  Clark's  Ch.  R.  63 ;  Story's  Eq.  PI.  §  875,  and  cases  cited. 

(o)  Stouffer  vs.  Machen,  16  111.  553 ;  Phelps  vs.  White,  18  111.  41 ;  Wynkoop 
vs.  Cowing,  21  111.  571 ;  Panton  vs.  Teft,  22  111.  366 ;  Qregg  vs.  Renfrews,  24 
111.  620 ;  Myers  vs.  Kimie,  26  111.  36  ;  Buntain  vs.  Wood,  29  111.  504 ;  Trout 
vs.  Emmons,  Id.  433  ;  Barton  vs.  Moss,  32  111.  50 ;  Dunlap  vs.  Wilson,  Id.  517 ; 
Cassell  vs.  Ross,  33  111.  246 ;  Martin  vs.  Bversol,  36  111.  222 ;  Wightman  va. 
Hart,  37  111.  123 ;  Maple  va.  Scott,  41  111.  50 ;  Wildey  vs.  Webster,  42  111. 
108;  Rmsell  vs.  Russell,  54  111.  250;  O'Brien  vs.  Fry,  82  III.  274 

(p)  Morrison  vs.  Stewart,  24  111.  25 ;  Hopkins  vs.  Granger,  52  111.  504. 

(q)    Fryrear  vs.  Lawrence,  5  Gilm.  325 ;  Hitt  vs.  Ormsbee,  14  111.  235. 

(r)    Rust  vs.  Mansfield,  25  111.  338  ;  Pensonau  vs.  Pulliam,  47  111.  58. 

(s)    Rust  vs.  Mansfield,  25  111.  338. 


THE   DEFENSE   TO  A  SUIT.  143 

Answer  to  a  Bill  —  Admissions  —  Corporations. 

evidence  tending  to  dispute  it  will  not  be  considered,  {t)  But 
if*  an  admission  has  been  made  in  an  answer  improvidently  and 
by  mistake,  the  court  will  relieve  the  party  making  it  from  its 
effect,  by  an  order  directing  so  much  of  the  answer  as  contains 
the  admission  to  be  treated  as  no  part  of  the  record,  but,  before 
such  an  order  will  be  made,  the  court  must  be  satisfied  by  affi- 
davit that  the  admission  was  made  under  a  misapprehension  or 
by  mistake.  Courts  exercise  a  liberal  discretion  in  relieving 
from  the  effect  of  admissions  in  answers  not  under  oath,  which 
are  mere  pleadings,  and  are  frequently  signed  by  counsel ;  but 
where  an  answer  is  under  oath  great  caution  is  observed.  If 
the  relief  sought  is  from  an  admission  of  law  it  may  be  suffi- 
'cient  to  show  that  he  was  erroneously  advised  by  his  solicitor 
in  that  regard,  but  where  the  relief  sought  is  from  an  admis- 
sion of  fact  it  should  be  shown  that  the  answer  was  drawn 
with  care  and  attention,  stating  upon  information  and  belief 
such  facts  as  were  not  within  the  defendant's  own  knowledge. 
No  court  ought  to  relieve  a  party  from  the  consequences  of  a 
reckless  misstatement  under  oath.  It  should  also  be  shown 
that  the  fact  misstated  was  not  one  within  the  defendant's  own 
knowledge,  and  that  he  was  erroneously  informed  in  regard  to 
it,  and  made  oath  to  the  answer,  honestly  believing  such  erro- 
neous information,  {u) 

"Where  a  defendant  has  by  a  mistake  or  misapprehension  of 
the  facts,  or  of  his  rights,  made  an  admission  in  his  answer 
inconsistent  with  the  truth,  he  may  file  a  supplemental  answer 
under  which  he  may  prove  that  the  fact  was  contrary  to  the 
admission,  {v) 

Answer  of  a  corporation. — The  statute  of  Illinois  of  1872 
{w)  provides  that  when  a  corporation,  other  than  a  municipal 

it)    Welder  vs.  aark,  27  111.  251. 

{u)  Maker  vs.  Bull,  39  111.  531 ;  Snydam  vs.  Truesdale,  6  McLean,  459  ; 
Coquilland  vs.  Stiydam,  8  Blackf.  24. 

{v)  Hughes  vs.  Bloomer,  9  Paige,  Ch.  R.  269  ;  Boican  vs.  Gross,  4  Johns. 
Ch.  R.  375 ;  Murdoch's  Case,  2  Bland,  461  McKim  vs.  Thompson,  1  Bland, 
150  ;  Gary  vs.  Ector,  7  Geo  99 

{tc)  Rev.  Stat.  (1874)  201;  Rer.  Stat.  (1877)  186;  see  Larrison  vs.  P.  A.  & 
D.R.R.  Co.  77  III.  11. 


144  THE   DEFENSE   TO  A  SUIT. 

Answer  to  a  Bill  —  Infants  and  Insane  Defendants. 

corporation,  is  defendant  to  a  bill  or  petition  praying  discovery 
of  any  paper,  or  matter  alleged  to  be  in  the  custody,  or  within 
the  knowledge  of  any  officer  or  agent  of  the  defendant,  it  shall 
not  be  necessary,  for  the  purpose  of  procuring  such  discovery, 
to  make  such  officer  or  agent  a  defendant,  but  the  answer 
touching  the  paper,  or  matter  concerning  which  discovery  is 
sought,  shall  be  under  the  oath  of  such  officer  or  agent,  the 
same  as  if  he  had  been  made  defendant ;  provided,  no  corpora- 
tion shall  be  required  to  procure  such  answer  under  the  oath 
of  any  person  not  under  its  control  at  the  time  when  the  bill  is 
filed. 

The  answer  of  a  corporation  aggregate,  is  usually  under  seal ; 
not  under  oath,  {x) 

Answer  of  infants  a/nd  insane  defenda/nts. —  Gtjakdian 
AD  LITEM. — The  statute  of  Illinois  provides  that,  "  in  any  cause 
in  equity,  it  shall  be  lawful  for  the  court  in  which  the  cause  is 
pending,  to  appoint  a  guardian  ad  litem,  to  any  infant  or  insane 
defendant  in  such  cause,  and  to  compel  the  person  so  appointed 
to  act,"  {y) 

A  guardian  ad  litem  should  make  himself  familiar  with  the 
condition  of  the  case,  and  the  rights  and  interests  of  the  infant 
defendants ;  and  if  the  circumstances  and  the  infant's  interests 
require  it,  he  should  make  a  vigorous  defense,  {z)  Nothing  can 
be  admitted  by  the  infant,  nor  his  guardian  ad  litem  for  him ; 
but  every  allegation  in  the  bill  must  be  strictly  proved,  so  far 
as  the  infant  is  concerned  ;  {a)  and  the  record  of  the  proceed- 
ings  must   furnish  proof  to  sustain  a  decree  against  infant 

(cc)  Vermilyea  vs.  Fulton  Bank,  1  Paige,  Cli.  R.  37 ;  Angel  &  Ames  on 
Corp.  595 ;  Supervisors  etc.  vs.  M.  &  W.  R.  B.  Co.  21  111.  365 ;  1  Johns.  Ch. 
R.  366. 

(y)  Rev.  Stat.  (1877)  184;  see  Foreman  vs.  Stkkney,  77  111.  575;  Lloyd 
vs.  Malone,  23  111.  43. 

(2)  McClay  vs.  Norris,  4  Gilm.  370;  Sconce  vs.  Whitney,  12  111.  150; 
Cost  vs.  Rose,  17  111.  278  ;  Rhoads  vs.  Rhoads,  43  111.  239  ;  PeaJc  vs.  Pricer, 
21  111.  164. 

(a)  Hitt  vs.  Ormshee,  12  III.  166;  Tuttle  vs.  Garrett,  16  111.  354;  Lloyd 
vs.  Malone,  23  111.  43 ;  Reddick  vs.  State  Bank,  27  111.  148 ;  Masterson  vs. 
Winswould,  18  111.  48;  Carrvs.  Fielden,  Id.  77;  Tibis  vs.  Allen,  27  111.  129; 
ITees  vs.  Voss,  52  111.  474 ;  Fischer  vs.  Fischer,  54  111.  231. 


THE  DEFENSE  TO  A  SUIT.  145 

Answer  to  a  Bill  —  The  Titles,  etc. 

defendants,  whether  the  guardian  ad  litem  answer  or  not,  or 
whether  he  admits  or  denies  the  allegations.  (J) 

Unless  a  guardian  ad  litem  is  appointed  for  infant  defend- 
ants, all  proceedings  against  them  will  be  erroneous,  (c)  But  if 
thej  are  not  in  court  for  want  of  service,  {d)  or  notice  by  pub- 
lication, {e)  the  appointment  of  a  guardian  ad  litem  would  be 
void, 

A  bill  cannot  be  taken  as  confessed  against  a  defendant,  who 
is  an  infant  or  insane,  under  any  circumstances.  (/") 

rOKMS   OF   Aiq-SWEK. 

Miscella/neous  forms  of  commencements  and  conclusions  of 

answers. 

I.    THE   TITLES. 

iVb.  Ji,0.     Title  of  answer  hy  one  defendant. 

The  answer  of  C.  D.,  the  defendant,  to  the  bill  of  complaint 
of  A.  B.,  the  complainant. 

]Sfo.  Jpl.     Title  of  a  joint  and  several  answer. 

The  joint  and  several  answer  of  C.  D.  and  E.  F.,  the  defend- 
ants, to  the  bill  of  complaint  of  A.  B.,  the  complainant. 

1^0.  1^.     Title  of  the  answer  of  one  of  several  defenda/nts. 

The  answer  of  C.  D.,  one  of  the  defendants  to  the  bill  of 
complaint  of  A.  B.,  the  complainant. 

(&)  Masterson  vs.  Winswould,  18  111.  48 ;  Carr  vs.  Fielden,  Id.  77 ;  Chaffin 
vs.  Heirs  of  Kimball,  23  111.  36 ;  Qoud%j  vs.  Hall,  36  111.  313 ;  Tihls  ys.  Allen, 
27  111.  129. 

(c)  Hall  vs.  Davis,  44  111.  494 ;  Quigley  vs.  Roberts,  Id.  503 ;  Sullivan  vs. 
Sullivan,  42  111.  315  ;  McBaniel  vs.  Canell,  19  111.  226 ;  Peck  vs.  Shasted,  21 
111.  137. 

{d)    Clark  vs.  Thojnpson,  47  111.  25. 

{e)  McDermaid  vs.  Russell,  41  111.  490 ;  Hichenbotham  vs.  Blackledge,  54 
El.  318. 

(/)  McClay  vs.  Norris,  4  Gilm.  370 ;  Sconce  vs.  Whitney,  12  111.  150 ;  Cost 
vs.  Rose,  17  111.  278. 
10 


146  THE   DEFENSE   TO  A  SUIT. 

Answer  to  a  Bill  —  Title  —  Commencement  of. 

No.  JfS.     Title  of  answer  to  amended  hill. 

The  answer  of  C  D.,  the  defendant,  to  the  amended  bill  of 
complaint  of  A.  B.,  the  complainant. 

No.  JfJi-.     Title  of  answer  where  exceptions  have  heen  taken  to 
a  form  of  answer,  and  the  hill  has  also  heen  amended. 

The  further  answer  of  C.  D.,  one  of  the  defendants  to  the 
original  bill,  and  his  answer  to  the  amended  bill  of  complaint 
of  A.  B.,  the  complainant. 

No.  JfS.     Title  of  answer  to  a  supplemental  hill. 

The  answer  of  C.  D.,  the  defendant  to  the  supplemental  bill 
of  complaint  of  A.  B.,  the  complainant. 

No.  JfB.     Title  of  amended  answer. 

The  amended  answer  of  C.  D.,  the  defendant,  to  the  bill  of 
complaint  of  A.  B.,  the  complainant. 

No.  Ji.7.    Title  of  answer  hy  iifants  hy  their  guardian  ad  litem. 

The  answer  of  C.  D.,  an  infant  under  the  age  of  twenty-one 
years,  by  E.  F.,  his  guardian  ad  litem,  to  the  bill  of  complaint 
of  A.  B.,  the  complainant. 


II.     THE    COMMENCEMENT. 

No.  1{8.     Introduction  to  an  answer  of  one  defendant. 

This  defendant,  now  and  at  all  times  hereafter,  saving  to 
himself  all  manner  of  benefit  and  advantage  of  exception  which 
can  or  may  be  had  or  taken  to  the  many  errors,  uncertainties 
and  other,  imperfections  in  the  said  bill  contained,  for  answer 
thereunto,  or  to  so  much  and  such  parts  thereof  as  this  defend- 
ant is  advised  it  is  or  are  material  or  necessary  for  him  to  make 
answer  unto,  answering,  says,  etc. 

Or  thus : 
This  defendant  reserving  to  himself  all  right  of  exception  to 
$he  said  bill  of  complaint,  for  answer  thereto,  says,  etc. 

No.  Ifi.     Introduction  to  answer  of  several  defen(lants. 

These  defendants,  now  and  at  all  times  hereafter,  saving  and 
reserving  to  themselves,  and  each  of  them,  all  benefit  and 


THE  DEFEASE   TO  A  SUIT.  147 

Answer  to  a  Bill  —  Common  Forms  in  Framing. 

advantage  of  exception  or  otherwise,  that  can  or  may  be  had  or 
taken  to  the  many  errors,  uncertainties  and  other  imperfections 
in  the  said  bill  contained  for  answer  thereto,  or  to  so  much 
thereof  as  these  defendants  are  advised  is  or  are  material  or 
necessary  for  them,  or  any  of  them,  to  make  answer  unto, 
they,  these  defendants,  severally  answering,  say,  etc. 

Or  thus : 

These  defendants,  reserving  to  themselves  all  right  of  excep- 
tion to  the  said  bill  of  complaint,  for  answer  thereto,  say,  etc. 


m.     COMMON    FOKMS    IN   FRAMING   ANSWEE8. 

No.  50.    Where  defendant  admits  a  statement. 

And  this  defendant  further  answering,  says  that  he  has  been 
informed  and  believes  it  to  be  true,  that,  etc. 

Or, 

This  defendant  admits  that,  etc. 

No.  51.    Where  a  defendant  admits  a  statement  of  a  written 

instrument. 

And  this  defendant  further  says,  that  he  has  been  informed, 
and  believes  it  to  be  true,  that,  etc. ;  but  for  greater  certainty 
therein,  craves  leave  to  refer  to  the  said,  etc.,  when  the  same 
shall  be  produced. 

No.  5^.  Where  a  defendant  helieves  a  statement  may  he  true, 
hut  qualifies  his  admission  of  it,  not  knowing  the  same  of 
his  own  knowledge. 

And  this  defendant  further  says,  he  has  never  heard  or  been 
informed,  save  by  the  complainant's  said  bill,  whether,  etc. ; 
but  this  defendant  believes  that,  etc.,  as  in  the  said  bill  is 
alleged. 

No.  53.      Where  a  defendant  is  entirehj  ignorant  with  regard 
to  the  statement  in  the  hill. 

And  this  defendant,  further  answering,  says,  it  may  be  true, 
for  anything  this  defendant  knows  to  the  contrary,  that,  etc. ; 
but  this  defendant  is  an  utter  stranger  to  all  and  every  such 
matters,  and  cannot  form  any  belief  concerning  the  same. 


\JL,0i'^ 


148  THE   DEFENSE   TO  A  SUIT. 

Answer  to  a  Bill  —  General  Franie  of  Answer. 

i\r<3.  Blf..  Where  one  of  two  defendants^  of  his  ow7i  knowledge, 
knows  the  statement  in  the  hill  to  he  true,  and  the  other 
defendant  does  not  know  the  same,  hut  helieves  the  ansioer 
of  his  co-defendant. 

And  this  defendant,  C.  D.,  further  severally  answering,  says, 
and  this  defendant,  E.  F.,  believes  it  to  be  true,  that,  etc. 

No.  55.  Where  one  of  t/wo  defendants  denies  the  allegation 
in  the  hill,  and  the  other  defendant  helieves  such  denial  to 
he  true. 

And  this  defendant,  C.  D.,  further  severally  answering,  says, 
he  denies,  and  this  defendant,  E.  F.,  believes  such  denial  to  be 
true,  that,  etc. 

No.  56.     Where  several  defendants  ^oin,  and  are  all  ignorant 
of  the  allegations  %n  the  hill. 

And  these  defendants  further  severally  say  that  they,  or  any 
or  either  of  them,  to  the  knowledge  or  belief  of  the  others  or 
other  of  them,  do  not  know,  and  have  never  been  informed, 
save  by  the  complainant's  bill,  and  cannot  set  forth  as  to  their 
belief  or  otherwise,  whether,  etc. 

No.  57.    General  frame  of  an  answer. 

Court. 

Term,  18—. 

In  Chancery. 

The^ahswer  of  C.  D.,  defendant  to  the  bill  of  com- 
—  pMnt  of  A.  B.,  complainant. 

This  defendant,  now  and  all  times  hereafter,  saving  and 
reserving  unto  himself  all  benefit  and  advantage  of  exception 
which  can  or  may  be  had  or  taken  to  the  many  errors,  uncer- 
tainties and  other  imperfections  in  the  said  bill  contained,  for 
answer  thereunto,  or  to  so  much  and  such  parts  thereof  as 
this  defendant  is  advised  it  is  or  are  material  or  necessary  for 
him  to  make  answer  unto,  answering,  says,  etc.  This  defend- 
ant admits,  etc. 

~—  This  defendant,  further  answering,  denies,  etc.,  {and  so  on 
through  the  whole  hill,  admit  or  deny  every  mater'ial  allegation, 
and  set  u-p  OMy  matter  in  defense  or  avoida/nce,  as  tlie  nature 
of  the  case  moAj  require,  and  conclude  as  follows :) 


THE  DEFENSE   TO  A  SUIT.  149 

Answer  to  a  Bill  —  Short  Form  of  Answer. 

And  this  defendant  denies  all  and  all  manner  of  nnlawfni 
combination  and  confederacy,  wherewith  he  is  by  the  said  bill 
charged,  without  this  that  there  is  any  other  matter,  cause  or 
thing  in  the  complainant's  said  bill  of  complaint  contained, 
material  or  necessary  for  this  defendant  to  make  answer  unto 
and  not  herein  and  hereby  well  and  sufficiently  answered, 
confessed,  traversed  and  avoided  or  denied,  is  true  to  the 
knowledge  or  belief  of  this  defendant ;  all  which  matters  and 
things  this  defendant  is  ready  and  willing  to  aver,  maintain 
and  prove,  as  this  honorable  court  shall  direct ; land  prays  to 
be  hence  dismissed  with  his  reasonable  costs  and  charges  in 
this  behalf  most  wrongfully  sustained. 

,  Sol.  for  Defendant.  C.  D. 

If  the  answer  is  required  to  be  under  oath,  the  following 
affidavit  should  be  attached  : 

N'o.  58.     Affidavit  to  answer. 


ss. 


State  or  

County  of 

On  this  day  of ,  18 — ,  before  me  personally  ap- 
peared C.  D.,  and  made  oath  that  he  has  read  {or  heard  read) 
the  above  answer,  subscribed  by  him,  and  knows  the  contents 
thereof,  and  that  the  same  is  true,  of  his  own  knowledge, 
except  as  to  matters  which  are  therein  stated  to  be  on  his 
information  and  belief,  and  as  to  those  matters,  he  believ©8 
them  to  be  true. 

,  Cleric  of  the Court. 

No.  69.    Short  form  of  answer 

In  the Court. 

Term,  18— 

In  Chancery. 


The  answer  of  C.  D.,  defendant,  to  the  bill  of  com- 
plaint of  A.  B.,  complainant. 
This  defendant  reserving  to  himself  all  right  of  exceptions  to 
the  said  bill  of  complaint,  for  answer  thereto,  says,  etc.  {Pro- 
ceed with  the  several  a/verments  according  to  the  case,  admitting 
or  denying  every  material  allegation  in  the  stating  part  of  the 
hill,  and  set  up  any  matter  in  defense  or  avoidance  as  the 
nature  of  the  case  may  require  /  and  conclude  as  follows  :) 


150  THE   DEFENSE   TO  A  SUIT. 

Answer  to  a  Bill  —  Infants  —  Statute  of  Frauds,  etc. 

And  this  defendant  further  answering,  denies  that  the  com- 
plainant is  entitled  to  the  relief,  or  any  part  thereof,  in  the  said 
bill  of  complaint  demanded,  and  prays  the  same  advantage  of 
this  answer  as  if  he  had  pleaded  or  demurred  to  the  said  Dill  of 
complaint ;  and  prays  to  be  dismissed  with  his  reasonable  costs 
and  charges  in  this  behalf  most  wrongfully  sustained. 

,  Sol.  for  Defendant.  C.  D. 

[Add  affidavit,  if  required,  as  in  last  form.) 

No.  60.     Answer  of  infants  hy  their  guardian  ad  litem. 

{Title  as  in  No.  67,  ante,  page  IJiB.) 

The  answer  of  E.  D.  and  C.  D.,  infants,  under  the  age 

of years,  by  E.  F.,  their  guardian  ad  litem,  to 

the  bill  of  complaint  of  A.  B.,  the  complainant. 
These  defendants  answering  by  their  guardian  ad  litem,  say, 

that  they  are  infants,  this  defendant  E.  D.,  of  the  age  of 

years,  or  thereabouts,  and  this  defendant  C.  D.,  of  the  age  of 

years,  or  thereabouts,  and   they  therefore  submit  their 

rights  and  interests  in  the  matter  in  question  in  this  cause,  to 
the  tender  consideration  and  protection  of  this  honorable  court, 
Rcd  pray  strict  proof  of  the  matters  alleged  in  said  bill  of 
complaint.  E.  D. 

0.  D. 
By  E.  F.,  their  guardian  ad  litem. 

No.  61.    Statement  in  answer,  claiming  the  henefit  of  the  statute 

of  frauds. 

And  this  defendant  says,  that  by  the  statute  of ,  it  is 

among  other  things  provided,  that,  no  action  shall  be  brought 
whereby  to  charge  any  person  upon  any  contract  of  any  lands, 
tenements  and  hereditaments,  or  any  interest  in  or  concerning 
them,  unless  the  agreement  upon  which  such  action  should  be 
brought,  or  some  memorandum  or  note  in  writing  shall  be 
signed,  by  the  said  party  to  be  charged  therewith,  or  some 
other  person  by  him  lawfully  authorized  ;  {give  the  language 
of  the  statute})  And  this  defendant  insists  upon  the  said  statute, 
and  claims  the  same  benefit  as  if  he  had  pleaded  the  same. 

No.  62.     Conclusion  of  an  answer,  insisting  that  the  com 
jplainant  has  an  adequate  remedy  at  law. 

And  this  defendant  submits  to  this  honorable  court  that  all 
and  every  the  matters  in  the  complainant's  bill  mentioned  and 


THE  DEFENSE   TO  A  SUIT.  151 


Answer  to  a  Bill  —  When  to  be  Filed  —  Of  Amended  Bill. 

complained  of,  are  matters  which  may  be  tried  and  determined 
at  law,  and  with  respect  to  which  the  complainant  is  not  enti- 
tled to  any  relief  from  a  court  of  equity ;  and  this  defendant 
asks  that  he  shall  have  the  same  benefit  of  this  defense  as  if  he 
had  demurred  to  the  complainant's  bill  ;  and  this  defendant 
denies,  etc. 

When  to  he  filed. — In  Illinois  the  defendant,  when  properly 
Bummoned,  served  with  a  copy  of  the  bill  or  petition,  or  noti- 
fied as  required  by  the  Practice  Act  of  1872,  is  held  to  except, 
demur,  plead  or  answer  on  the  return  day  of  the  summons ;  or 
if  the  summons  is  not  served  ten  days  before  the  first  day 
of  the  term  at  which  it  is  returnable,  by  the  first  day  of  the 
next  term,  or  in  case  of  service  by  copy  of  the  bill,  or  by 
notice,  at  the  expiration  of  the  time  I'equired  to  be  given,  or 
within  such  further  time  as  may  be  granted  by  the  court,  or  in 
default  thereof,  the  bill  may  be  taken  as  confessed,  {g) 

If  the  defendant  shall  appear  at  the  next  term  and  offer  to 
file  his  answer  to  the  bill,  the  court  may  permit  him  to  do  so, 
upon  his  showing  sufficient  cause,  and  paying  the  costs  of  the 
preceding  ternis ;  in  such  case  the  decree  shall  be  vacated,  and 
the  cause  may  be  proceeded  with  as  in  other  cases.  (A) 

When  the  defendant  has  obtained  an  extension  of  time  in 
which  to  answer,  if  a  certain  day  in  term  is  fixed,  he  may 
demur,  plead  or  answer.  But  it  may  be  doubtful  whether  he 
could  file  a  demurrer  or  plea  if  he  obtained  an  extension  of 
time  expiring  in  vacation.  (^) 

Answer  to  amended  hill. — In  answering  an  amended  bill, 
the  defendant,  if  he  has  answered  the  original  bill,  should 
answer  only  those  matters  which  have  been  introduced  by  the 
amendments,  {j)  In  fact  the  answer  to  an  amended  bill  consti- 
tutes, together  with  the  answer  to  the  original  bill,  but  one 
record,    as    much  as  if  it  had  been  engrossed  on    the  same 

{g)    Kev.  Stat.  (1874)  200;  Rev.  Stat.  (1877)  186. 
(/O    lb. 

(0    Kihjour  vs.  Crawford,  51  111.  249;  6  Pet.  'S21;  Dunn  vs.  Keegin,  3 
Scam.  293;  Morgan  vs.  Corlies,  81  111.  72. 
ij)    Hinde's  Cli.  Pr.  22;  1  Barb.  Ch.  Pr.  159. 


162  THE  DEFENSE   OF  A  SUIT. 

Answer  to  a  Bill  —  Amendment  of. 

paper;  (Jc)  in  the  same  manner  that  an  original  and  an  amended 
bill  are  considered  as  the  same  record.  Upon  thib  principle  it 
is  that  it  has  been  held  that  it  is  impertinent  to  repeat,  in  the 
answer  to  the  amended  bill,  what  appears  upon  the  answer  to 
the  original  bill,  unless  by  the  repetition  the  defense  is  mate- 
rially varied.  {I)  Where  the  amendments  are  not  noted  upon 
the  amended  bill,  the  defendant  should  ascertain  where  the 
amendments  are  and  answer  them  only,  (m) 

Amendment  of  answer. —  Permission  to  a  defendant  to 
amend  his  answer  is  a  matter  in  the  discretion  of  the  court, 
and  will  generally  be  allowed  in  the  promotion  of  justice,  and 
when  injury  cannot  result  to  the  complainant,  and  in  cases 
where  injury  might  result  unless  time  is  given  to  the  opposite 
party  to  meet  the  change  in  the  case  produced  by  the  amend- 
ment, the  court  will  refuse  leave  to  amend,  or  give  the  other 
party  a  rea«onable  time  to  meet  the  amendment,  {n)  Generally, 
amendments  will  be  allowed  in  chancery  pleadings  at  the 
discretion  of  the  court,  (o)  When  it  is  made  on  a  material 
point,  the  motion  should  be  based  upon  an  affidavit  of  the  facts 
which  make  it  necessary,  i^jp)  An  amendment  may  be  granted 
for  the  purpose  of  correcting  a  mistake  or  error  in  a  matter  of 
fact,  or  in  the  statement  of  a  fact ;  {g)  or  in  making  an  admission 
of  assets  ;  if)  or  a  mistake  in  the  title  of  the  answer,  {s)  So  it  will 
be  allowed  where  new  matter  has  come  to  the  knowledge  of  the 
defendant,  since  the  answer  was  put  in ;  {C)   or  in   cases  of 

{k)  Mitf.  Eq.  PI.  257;  HildyaTdv?>.Cr6ssy,Zh.t\.2,()Z\  Bennington  Iron 
Co.  vs.  Campbell  2  Paige,  Ch.  R.  159. 

{I)    Smith  vs.  Searle,  14  Ves.  415. 

(to)  Bennington  Iron  Co.  vs.  Camphell,  2  Paige,  Cli.  R.  159  ;  1  Barb.  Ch. 
Pr.  159. 

(n)  Wylder  vs.  Crane.  53  111.  490;  Haslrll  vs.  Brown,  65  111.  29-  Boherts 
vs.  Stigleman,  78  111.  120. 

(o)    Artee  vs.  Engart,  13  111.  243 ;  Liggon  vs.  Smith,  4  Hen.  &  Munf.  477. 

\p)  Liggon  vs.  Smith,  4  Hen.  &  Munf.  477  ;  1  Barb.  Ch.  Pr.  1G4. 

(g-)  Alpha  vs.  Payman,  1  Dick.  R.  33  ;  Berney  vs.  CJiambers,  Bumb.  248 ; 
Countess  vs.  Gifford,  2  P.  Wins.  R.  424;  1  Barb.  Ch.  Pr.  164. 

(?•)    Biigley  vs.  Crump,  1  Dick.  31. 

(s)    Anib.  62  ;  1  Ma.l.  269  ;  1  Ves.  &  B.  186. 

{t)  Patterson  vs.  Slaughter,  Anib.  292  ;  Wells  vs.  Wood,  10  Ves  R.  401 ; 
Alpa  vs.  Payman,  Dick.  33. 

\ 


THE  DEFENSE   TO  A  SUIT.  153 

Disclaimer  —  Nature  of. 

surprise,  as  where  an  addition  has  been  made  to  the  draft  of 
the  answer,  after  the  defendant  has  perused  it.  [u)  It  will  be 
allowed  where  a  defense  is  defectively  set  forth,  in  order  to 
give  the  party  the  benefit  of  the  defense  which  he  intended  to 
present.  But  he  will  not  be  permitted  to  put  in  a  new  or  addi- 
tional plea  or  answer,  {-v) 


SECTION  VI. 

DISCLAEMEE. 

Nature  of. — A  disclaimer  is  a  renunciation  by  the  defendant 
of  all  interest  or  claim  to  the  subject  of  demand  made  by  the 
complainant  in  his  bill.  It  cannot  be  used,  however,  for  the 
purpose  of  depriving  the  complainant  of  his  right  to  a  fuU 
answer,  where  it  is  evident  that,  notwithstanding  the  dis- 
claimer, the  defendant  ought  to  be  retained  as  a  party  to  the 
suit.  A  mere  witness  may  avoid  answering  by  a  disclaimer ; 
but  it  is  otherwise  with  an  agent  charged  by  the  bill  with  a 
personal  fraud,  for  the  law  does  not  permit  a  man  to  disclaim 
a  liability,  {a) 

A  disclaimer  is  distinct  in  substance  from  an  answer,  although 
sometimes  confounded  with  it.  (J)  But  it  can  seldom  be  put 
in  without  an  answer ;  for  if  a  defendant  has  been  made  a 
party  by  mistake,  having  had  an  interest,  which  he  may  have 
parted  with,  the  plaintiff  may  require  an  answer  sufficient  to 
ascertain  whether  that  is  a  fact  or  not ;  and  if,  in  truth,  it  is  so, 
an  answer  seems  necessary  to  enable  the  complainant  to  make 
the  proper  party,  instead  of  the  defendant  disclaiming,  (c) 

(u)    Clmte  vs.  Lady  Dacre,  1  Eq.  Ca.  Ab.  29  ;  1  Barb.  Ch.  Pr.  164. 

(v)    Beach  vs^  Fulton  Bank,  3  Wend.  573. 

(ffl)  Barton's  Suit  in  Eq.  94 ;  2  Dan.  Ch.  Pr.  233  ;  Mitf .  Eq.  PI.  153 ;  Ells- 
worth vs.  Curtis,  10  Paige,  Ch.  R.  105  ;  Bentley  vs.  Cowman,  6  Gill  &  J.  152 ; 
Story's  Eq.  PL  §  838 ;  Glassington  vs.  Thwaites,  2  Russ.  R.  458 ;  Whiting 
vs.  Mush,  2  Younge  &  Coll.  546,  552;  Bukeley  vs.  Dunbar,  1  Anst.  R.  37; 
Welford's  Eq.  PI.  254. 

Q))    Mounsay  vs.  Burnham,  1  Hare,  R.  15. 

(c)    Ellsworth  vs.  Curtis,  10  Paige,  Ch.  R.  105  ;  Story's  Eq.  PI.  §  838. 


154  THE   DEFENSE   TO  A  SUIT. 

Disclaimer  —  Nature  of  —  Form  of. 


A  mere  disclaimer  is  scarcely  to  be  deemed  suflScient  or 
proper,  except  where  the  bill  simply  alleges  that  the  defendant 
claims  an  interest  in  the  property  in  dispute,  without  more ; 
for  under  such  circumstances,  if  he  has  no  interest,  that  is  a 
sufficient  answer  to  the  allegation  ;  {d)  and  he  need  not  answer 
further,  {e) 

As  a  defendant  may  disclaim  and  answer,  so  he  may  demur 
to  one  part  of  the  bill,  plead  to  another,  answer  to  a  third,  and 
disclaim  to  a  fourth ;  but  all  these  defenses  must  clearly  refer 
to  separate  and  distinct  parts  of  the  bill.  (/") 

A  defendant  cannot,  by  a  disclaimer,  deprive  the  complain- 
ant of  the  requiring  a  full  answer  from  him,  unless  it  is  evident 
that  the  defendant  ought  not,  after  such  disclaimer,  to  be 
retained  as  a  party  to  the  suit,  {g) 

If  the  defendant  disclaims,  and  it  appears  that  the  bill  was 
exhibited  for  vexation  only,  the  court  will  dismiss  the  bill 
with  costs  against  the  complainant.  (A)  A  disclaimer  must  be 
full  and  explicit  in  all  respects,  and  be  accompanied  by  an 
answer  denying  the  facts  deemed  necessary  to  be  denied;  it 
cannot  be  made  by  way  of  demurrer,  {i)  If  it  is  accompanied 
by  an  insufficient  answer,  the  complainant  should  except  to 
the  answer,  [j) 

No.  63.     Disclaimer. 

{Title  of  cause.) 

The  disclaimer  of  C.  D.,  one  of  the  defendants,  to  the 
bill  of  complaint  of  A.  B.,  the  complainant. 
This  defendant,  saving  and  reserving  to  himself,  now  and 
at  all  times  hereafter,  all  manner  of  advantage  and  benefit  of 

{d)    Oraliam  vs.  Coape,  9  Sim.  102 ;  /S.  C.  3  Mylne  &  Craig,  638. 

(c)    Spofford  vs.  Manning,  2  Edw.  Ch.  R.  358. 

(/)  Coop.  Eq.  PI.  309,  310;  Mitf.  Eq.  PI.  319,  320;  Story's  Eq.  PI.  §  436, 
437,  839. 

{g)  Olassington  vs.  Thwaites,  2  Russ.  R.  458-462 ;  Graham  vs.  Coape,  9 
Sim.  R.  103  ;  S.  C.  3  Mylne  &  Craig,  638  ;  Ellsworth  vs.  Curtis,  10  Paige,  Ch. 
R.  105. 

(A)   Coop.  Eq.  PI.  310,  311 ;  Story's  Eq.  PL  §  842. 

(t)     Worthington  vs.  Lee,  2  Bland,  678. 

(j)    Ellsworth  vs.  Curtis,  10  Paige,  Ch.  R.  105. 


THE  DEFENSE   TO  A  SUIT.  155 

Disclaimer — Anfcwer  and  Disclaimer. 


exceptions  and  otherwise  that  can  or  may  be  had  and  taken  to 
the  many  untruths,  uncertainties  and  imperfections  in  the  said 
complainant's  bill  of  complaint  contained,  for  answer  thereunto, 
or  Unto  so  much,  or  such  part  thereof  as  is  material  for  this 
defendant  to  make  answer  unto,  he  answers,  and  says,  that  he 
fully  and  absolutely  disclaims  all  manner  of  right,  title  and 

interest  whatsoever,  in  and  to  the  legacy  of dollars  in  said 

bill  of  complaint  mentioned,  and  all  other  the  estate  and  effects 
of  the  said  Thomas  Atkins,  deceased,  in  the  said  bill  named, 
and  in  and  to  every  part  thereof;  and  this  defendant  denies  all 
and  all  manner  of  unlawful  combination  and  confederacy  un- 
justly charged  against  him  in  and  by  the  said  bill  of  complaint, 
without  this  that  any  other  matter  or  thing  in  said  bill  con- 
tained, material  or  necessary  for  this  defendant  to  make  answer 
unto,  and  not  herein  well  and  sufficiently  answered  unto,  con- 
fessed or  avoided,  traversed  or  denied,  is  true;  all  which  mat- 
ters and  things  this  defendant  is  ready  to  aver,  maintain  and 
prove,  as  this  honorable  court  shall  direct,  and  humbly  prays 
to  be  hence  dismissed,  with  his  reasonable  costs  and  charges, 
in  this  behalf  most  wrongfully  sustained, 
{^Add  affidavit,  Wo.  68,  ante,  page  IJfJ).) 

No.  6 J/..     Answer  and  disclaimer. 

{ComTnence  as  in  Wo.  67,  ante,  page  IJfS,  to  the  *)  Answering, 
says,  that  he,  this  defendant,  on  behalf  of  E.  F.,  one  of  the 

other  defendants  in  the  said  bill  named,  did  about years 

ago,  contract  and  agree  with  G.  H.  for  the  purchase  of  the  lands 
and  tenements,  etc.,  now  in  question,  and  in  possession  of  L. 
M.,  in  the  said  bill  also  named,  and  another  defendant  thereto, 
which  said  lands  and  tenements,  etc.,  at  that  time  were,  and  for 

above years  before  had  been  in  the  possession  of  the  said 

G.  H.  and  J.  K.,  in  the  said  bill  also  named,  or  one  of  them, 
and  for  the  purchase  whereof  this  defendant,  on  behalf  of  the 
said  defendant  E.  F.,  agreed  to  give,  and  accordingly  did  give 
and  pay  to  the  said  G.  H.,  the  sum  of dollars ;  and  in  con- 
sideration thereof  the  said  G.  H.,  and  K.,  his  wife,  by  deed 
bearing  date  on,  etc.,  duly  conveyed  the  said  lands  and  tene- 
ments, etc.,  to  the  said  E.  F.,  who,  thereupon  and  under  and  by 
virtue  of  such  conveyance  as  this  defendant  has  heard  and 
believes,  entered  on  and  became  seized  of  the  said  lands  and 
tenements,  etc.,  and  continued  so  seized  thereof  without  any 
entry  or  claim  made  by  the  complainant,  or  any  other  person  or 

persons,  until  ,  in  the  year ,  when  the  said  E.  F.,  as 

this  defendant  has  heard  and  believes,  by  good  and  sufficient 


156  THE   DEFENSE   TO  A  SUIT. 

Disclaimer  —  Answer  and  Disclaimer, 
conveyance  in  the  law,  and  in  consideration  of  the  sum  of  ■ 


dollars,  hona  fide  paid,  sold  and  conveyed  the  said  lands  and 
tenements,  etc.,  to  the  said  defendant,  L.  M,,  and  his  heirs,  who 
thereupon  entered  thereon,  and  was  and  yet  is  seized  and  pos- 
sessed of  the  same ;  and  this  defendant  further  answering,  says, 
he  does  not  know,  nor  can  he  set  forth,  as  to  his  belief  or  other- 
wise, whether  R.  S.,  in  the  said  bill  named,  was  ever  seized  of 
the  said  premises,  or  any  part  thereof;  and  this  defendant 
further  answering,  says,  he  has  been  advised  and  believes  that 
the  said  G.  H.,  and  N.,  his  wife,  had  good  right  and  title  to  sell 
and  convey  the  said  premises  so  purchased  by  this  defendant, 
on  behalf  of  the  said  E.  F.,  as  aforesaid ;  and  this  defendant  fur- 
ther answering,  says,  he  denies  that  he  ever  had  any  notice  of  any 
right  or  title,  the  complainant,  or  any  other  person,  save  as 
aforesaid,  had  or  might,  or  could  claim,  of,  in  or  to  the  said 
lands  and  tenements,  etc.,  or  any  part  thereof;  and  this  defend- 
ant says,  that  he  never  had  or  claimed,  or  pretended  to  have, 
nor  has  he  now,  nor  does  he  claim,  or  pretend  to  have,  any 
right,  title,  or  interest  of,  in  or  to  the  said  premises,  or  any  part 
thereof ;  and  this  defendant  disclaims  all  right  and  title  of,  in 
and  to  the  same,  and  every  part  thereof. 
{Conclude  as  m  No.  67,  ante,  ^age  UfS.) 


CHAPTER  YIII. 


EXCEPTIONS   TO   ANSWER. 


Section  1.    Natxire  of. 

3.    Exceptions  fok  Insufficiency. 

3.    Exceptions  fok  Scandal  and  Impektinence. 

SECTION  I. 
NATUKE   OF. 

Exceptions  to  an  answer  are  in  the  nature  of  a  special 
demurrer,  (a)  and  are  of  two  kinds  —  insufficiency,  and  for 
scandal  and  impertinence.  The  former  lies  where  the  answer 
does  not  sufficiently  respond  to  the  allegations  and  charges  in 
the  bill ;  and  the  latter,  where  the  answer  contains  scandalous 
or  impertinent  matter. 

If  an  answer  is  objectionable,  exceptions  should  be  taken  to 
it ;  if  this  is  not  done,  the  case  should  be  set  down  for  hearing. 
If  it  is  obnoxious  to  exceptions,  a  further  answer  will  be  re- 
quired ;  and,  if  not  filed  within  the  time  directed,  the  bill  may 
be  taken  as  confessed.  If  a  further  answer  is  filed,  and  shall 
likewise  be  adjudged  insufficient,  the  defendant  will  be  required 
to  file  a  supplemental  answer,  and  pay  the  costs  attendant 
thereon ;  if  that  shall  be  adjudged  insufficient,  the  defendant 
may  be  proceeded  against  for  a  contempt,  and  the  like  proceed- 
ings be  had  thereon,  to  enforce  the  order  of  the  court,  as  in 
other  cases  of  contempt,  (b) 

K  the  complainant  elects  to  abide  by  his  exceptions  to  an 
answer,  on  the  ground  of  insufficiency,  which  are  disallowed, 
the  answer  will  be  taken  as  true,  (c) 

(a)  Story  vs.  Livingston,  13  Pet.  U.  S.  K.  359 ;  Stone  vs.  Moore,  26  111. 
171, 172. 

(6)  Stone  vs.  Moore,  26  111.  172 ;  Underwood's  Stat.  71 ;  see  Supervisors 
etc.  vs.  M.  (&  W.  E.B.  Co.  21  111,  365  ;  Bei-bi/  vs.  Gage,  38  111.  27. 

(c)    Prettyman  vs.  Barnard,  37  111.  105. 


158  EXCEPTIONS   TO   ANSWER 

For  Insufficiency  —  In  wliat  Cases  —  How  Taken. 

SECTION  II. 
EXCEPTIONS    FOR   LN  SUFFICIENCY 

In  what  cases  they  lie. —  Exceptions  for  insufficiency  will 
only  be  allowed  where  some  material  allegation,  charge  or 
interrogatory  in  the  bill  is  not  fully  answered,  (t?) 

Exceptions  will  lie  to  an  answer,  setting  up  a  justilication 
of  the  acts  complained  of,  but  not  showing  by  virtue  of  what 
right,  title  or  authority,  the  defendant  performed  the  acts,  {e) 

Exceptions  for  insufficiency  may  be  filed  after  exceptions 
for  impertinence,  {f) 

How  taJcen. —  Exceptions  to  an  answer  must  state  verbatim 
the  interrogatories  not  answered,  or  the  charges  in  the  bill  to 
which  the  answer  was  addressed,  and  the  terms  of  the  answer,  {g) 
They  must  be  founded  on  some  allegation,  charge  or  interrog- 
atory in  the  bill,  and  must  set  forth  the  particular  points  wherein 
the  answer  is  defective,  with  a  prayer  that  the  defendant  be 
required  to  put  in  a  full  and  perfect  answer  to  these  points ;  (A) 
otherwise,  the  exceptions  may  be  stricken  from  the  files,  on 
motion,  or  the  objection  may  be  taken  when  they  are  noticed 
for  argument,  (i) 

In  preparing  exceptions,  care  should  be  taken  that  all  the 
points  of  insufficiency  are  embodied  in  the  exceptions ;  for,  by 
the  general  rule  of  practice,  a  complainant  is  not  allowed  to 
add  to  or  alter  exceptions  after  they  are  filed ;  but  this  rule 
bends  to  circumstances ;  upon  a  clear  mistake  accounted  for, 
and  on  special  application,  leave  may  be  given  to  amend 
exceptions,  {j) 

(d)  Stafford  vs.  Brown,  4  Paige,  Ch.  R.  88. 

(e)  Craig  vs.  The  People,  4:1  111.  487. 

(/)  Patriotic  Bank  vs.  Bank  of  Washington,  5  Crancli,  C.  C.  R.  602. 

ig)  Hodgson  vs.  Butterfield,  2  Sim,  &  Stu.  R.  236 ;  Brooks  vs.  Byam,  1 
Story,  R.  296;  Baker  vs.  Kingsland,  3  Edw.  Cli.  138. 

{h)  Buloid  vs.  Miller,  4  Paige.  Ch.  R.  473 ;  McKeen  vs.  Meld,  4  Edw.  Ch. 
R.  379  ;  West  vs.  Williams,  1  Md.  Ch.  Decis.  358. 

(i)    Baker  vs.  Kingsland,  8  Edw.  Ch.  138. 

ij)  Bolder  vs.  The  Bank  of  England,  10  Ves.  283  ;  Partridge  vs.  Haj/' 
craft,  11  Ves.  570  ;  Eq.  Draft.  672. 


EXCEPTIONS   TO   ANSWEE.  159 

For  Insufficiency  —  How  Taken. 

When  there  are  two  or  more  defendants,  who  put  in  separate 
and  distinct  answers,  separate  exceptions  must  be  filed  to  each 
answer ;  (Jc)  and  when  exceptions  were  taken  to  the  joint  an- 
swer of  two  defendants,  and  one  of  them  died,  the  exceptions 
were  referred  as  to  the  answer  of  the  surviving  defendant  only,  (l) 

An  exception  will  not  be  allowed,  if,  by  striking  out  the 
portion  objected  to,  other  parts  of  the  answer  would  be  ren- 
dered unmeaning,  (m) 

If  the  whole  answer  to  a  compound  interrogatory,  taken 
together,  is  a  substantial  reply  to  the  whole  interrogatory, 
though  each  separate  question  therein  may  not  be  separately 
answered,  the  answer  will  be  held  sufficient,  (n) 

If  the  bill  requires  the  defendant  to  view  exhibits  before 
putting  in  his  answer,  and  he  neglects  to  do  so,  the  correct 
practice  is  to  except  to  his  answer  on  that  ground,  (o) 

The  statute  of  Illinois  requires  the  defendant  to  answer 
fully  all  the  allegations  and  interrogatories  of  the  complainant, 
whether  an  answer  on  oath  is  waived  or  not,  except  such  as 
are  not  required  to  be  answered,  by  reason  of  exception,  plea 
or  demurrer  thereto  allowed ;  (j?)  but,  it  is  said,  exceptions 
will  not  lie  to  an  answer  to  which  the  oath  of  the  defendant 
is  waived ;  (q)  because  such  answers  are  not  evidence. 

Exceptions  founded  on  verbal  criticism,  slight  defects,  and 
the  omission  of  immaterial  matter,  will  be  disallowed  and 
treated  as  vexatious,  (r) 

When  the  matter  of  the  bill  is  fully  answered,  and  the 
defendant  sets  up  matter  which  is  irrelevant,  and  forms  no 
sufficient  grounds  of  defense,  the  complainant  may  except  to 
the  answer  for  impertinence,  but  not  for  insufficiency,  {s) 

If  exceptions  to  an  answer  are  on  account  of  the  omission 

(k)  Sydolf  vs.  Mmkstone,  3  Dick.  609. 

(I)  Lord  Herhert  vs.  Pmey,  1  Dick.  255. 

(to)  German  vs.  MacMn,  6  Paige,  Ch.  R.  288. 

(»)  Mott  vs.  Hall,  41  Geo.  117. 

(o)  L' Estrange  vs.  Moloney,  1  Hogan,  470. 

[jy)  Kev.  Stat.  (1874)  201;  Rev.  Stat.  (1877]  187. 

iq)  1  Barb.  Ch.  Pr.  177. 

(r)  BaqgoU  vs.  Henry,  1  Edw.  Ch.  7. 

(s)  Stafford  vs.  Brown,  4  Paige,  Ch.  88. 


160  EXCEPTIONS   TO   ANSWER. 

For  Scandal  and  Impertinence  —  What  is. 

in  a  matter  not  material,  and  when  it  is  evident  that  the 
defendant  has  no  intention  of  avoiding  a  full  disclosure,  they 
will  not  be  sustained,  {i) 

The  rules  governing  the  frame  of  an  answer,  and  what  it 
must  contain,  has  already  been  fully  alluded  to  in  a  former 
chapter,  {u)  and  it  is  sufficient  to  say  that  for  any  of  the 
material  defects  in  the  answer,  as  there  pointed  out,  advan- 
tage may  be  taken  by  exceptions. 


SECTION  m. 

EXCEPTIONS    FOR    SCANDAL    AND   IMPEETINENCE. 

What  is. — What  is  said  in  a  previous  chapter  {v)  in  refer- 
ence to  the  framing  of  a  bill  so  that  it  does  not  contain  state- 
ments or  charges  which  are  scandalous  or  impertinent,  is 
applicable  to  an  answer.  As  we  have  there  seen,  scandal 
consists  in  the  allegation  of  anything  which  is  unbecoming  the 
dignity  of  the  court  to  hear,  or  is  contrary  to  good  manners,  or 
which  charges  some  person  with  an  offense  not  necessary  to  be 
shown  in  the  cause,  {w)  And  the  introduction  of  scandalous 
and  impertinent  matter  in  a  bill,  does  not  authorize  or  justify 
similar  matter  in  the  answer  to  meet  such  improper  allegations 
in  the  bill,  (x) 

If  an  answer  goes  out  of  the  bill  to  state  some  matter  not 
material  to  the  defendant's  case,  it  will  be  deemed  impertinent, 
and  the  matter,  upon  application  to  the  com*t,  will  be  ex- 
punged, (y)     So   it   is   impertinence,  where  the   pleading  is 

(t)  Davis  vs.  Mapes,  2  Paige,  Ch.  E.  105  ;  Baggott  vs.  Henry,  1  Edw. 
Ch.  7 ;  Fay  vs.  Jewett,  3  Edw.  Ch.  323 ;  West  vs.  Williams,  1  Md.  Ch.  Decis. 
358. 

{u)   Ante,  Chap.  V,  §  5. 

(«)    Ante,  Chap.  Ill,  pp.  51-3. 

{w)  1  Barb.  Ch.  Pr.  41 ;  Coffln  vs.  Cooper,  6  Ves.  514 ;  McConnell  vs.  Hols- 
bush,  11  111.  61 ;  1  Dan.  Ch.  Pr.  45  ;  Story's  Eq.  PI.  §  863. 

(x)    Langdon  vs.  Pickering,  19  Maine,  314. 

iy)  Langdon  vs.  Ooddard,  3  Story,  13  ;  Story's  Eq.  PI.  §  366,  367,  863  ; 
Conwell  vs.  Claypool,  8  Blackf .  124 ;  Spencer  vs.  Van  Dusen,  1  Paige,  Ch.  R. 
555. 


EXCEPTIONS   TO   ANSWER.  161 

For  Scandal  and  Impertinence. 

stuffed  with  long  recitals,  or  with  unnecessary  digressions,  or 
where  a  deed  is  stated,  which  is  not  prayed  to  be  set  forth,  {s) 

Any  matter  in  the  answer  which  is  responsive  to  the  bill, 
is  not  impertinent ;  [a)  and  when  exceptions  to  an  answer  em- 
braces matter  material  to  the  defense,  it  will  be  overruled,  (b) 

Exceptions  for  impertinence  or  scandal,  must  point  out  the 
objectionable  passage  with  clearness ;  and  if  several  parts  of  an 
answer  are  objectionable,  each  part  must  be  the  subject  of  a 
separate  exception  ;  (c)  and  where  a  whole  clause  or  sentence  is 
impertinent,  and  depends  upon  the  same  principle,  the  com- 
plainant cannot  except  to  a  part  of  the  clause  or  sentence  only, 
so  as  to  make  what  remains  unintelligible,  or  so  as  to  wholly 
change  the  meaning  of  what  remains,  should  the  part  excepted 
to  be  stricken  out ;  {d)  but  when  pertinent  matter  is  so  blended 
with  matter  which  is  impertinent,  that  it  cannot  be  separated, 
the  whole  may  be  excepted  to.  {e)  An  exception,  however,  for 
impertinence,  must  be  sustained  in  toto.  {f) 

When  an  answer  is  accompanied  by  a  plea  or  demurrer  to  any 
part  of  the  discovery  sought,  the  complainant,  unless  he  means 
to  admit  the  validity  of  the  plea  or  demurrer,  cannot  except  to 
the  answer  until  the  plea  or  demurrer  has  been  disposed  of;  {g) 
and  when  a  plea  is  ordered  to  stand  for  an  answer,  without 
any  liberty  to  accept  being  expressly  given,  the  complainant 
can  only  except  to  the  residue  of  the  answer ;  (A)  and  it  is  said 
that  exceptions  will  not  lie  to  an  answer  in  aid  of  a  plea,  {j) 

(2)     Story's  Eq.  PI.  §  366,  863 ;  Wood  vs.  Mann,  1  Sumner,  506,  508. 

(a)  Mclntyre  vs.  Trustees  of  Union  College,  6  Paige,  Ch.  R.  239 ;  Lown»- 
dale  vs.  City  of  Portland,  1  Oregon,  381 ;  8.  C.l  Deadley,  1. 

Q))  Balcom  vs.  JSf.  Y.  Life  Ins.  Co.  etc.  11  Paige,  Ch.  454 ;  Hardeman  vs. 
Harris,  1  How.  U.  S.  726 ;  Saltmarsh  vs.  Bower,  22  Ala.  221. 

(c)  W hitmarsTi  vs.  Campbell,  1  Paige,  Ch.  645. 

(d)  Franklin  vs.  Keeler,  4  Paige,  Ch.  382 ;  Buloid  vs.  Miller,  Id.  478. 

(e)  Norton  vs.  Woods,  5  Paige,  Ch.  R.  260. 

(/)  Mclntyre  vs.  Trustees  etc.  6  Paige,  Ch.  R.  239  ;  Van  Rensselaer  va. 
Brice,  4  Paige,  Ch,  R.  174 ;  Eq.  Draft.  672 ;  Wagstaff  vs.  Bryan,  1  Russ.  & 
My.  30 ;  1  Barb.  Ch.  Pr.  203. 

{g)    Siffhin  vs.  Manning,  9  Paige,  Ch.  R.  222. 

(Ji)  Kirby  vs.  Taylor,  6  Johns.  C.  R.  242 ;  Leaycraft  vs.  Derapsey,  15 
Wend.  83. 

{i)    Leftwich  vs.  Orne,  1  Freem.  Ch.  207. 
11 


162  EXCEPTIONS   TO   ANSWER. 

When  to  be  Filed  —  Forms  of  Exceptions. 

When  to  he  filed. — All  exceptions  to  answers  are  to  be  filed 
within  such  time  as  the  court  may  direct,  and  be  argued  at  such 
time  as  the  court  may  appoint.  (^' )  They  must  be  excepted 
to  before  filing  his  replication,  {k)  for  by  replying,  the  com- 
plainant admits  the  answer  to  be  sufficient;  and  exceptions 
must  be  disposed  of  before  further  proceedings  can  be  taken  in 
the  case.  (Z) 

No.  65.     Exceptions  to  answer  for  insufficiency. 

Court. 

Term,  18— . 


In  Chancery. 

Exceptions  taken  by  the  complainant  to  the  insuffi- 
cient answer  of  the  defendant,  C.  D.,  to  the  com- 
plainant's bill  of  complaint. 
First. — For  that  the  defendant,  C.  D.,  has  not  to  the  best 
and  utmost  of  his  knowledge,  remembrance,  information  and 
belief,  answered  and  set  forth  whether,  etc.     {Here  set  out  the 
ground  of  exception.) 

Second. — For  that  the  defendant  has  not  in  manner  afore- 
said, answered  and  set  forth  whether,  etc.  {and  so  on,  set  out 
the  ground  of  each  exception  as  the  case  may  require,  using  the 
words  of  the  interrogatory  or  matter  not  answered}^ 

In  all  which  particulars  the  complainant  excepts  to  the  an- 
swer of  the  defendant  C.  D.,  as  evasive,  imperfect  and  insuffi- 
cient ;  and  prays  that  the  defendant  C.  D.  may  be  compelled 
to  put  in  a  full  and  sufficient  answer  thereto. 

Sol.  for  Complainant. 

No.  66.    Exceptions  to  answer  for  scandal  and  impertinence. 

{Title  of  caiise  as  in  last  form.) 

Exceptions  taken  by  the  complainant  to  the  answer 
of  the  defendant,  C.  D.,  to  the  bill  of  complaint  in 
this  cause,  for  scandal  and  impertinence. 
First. — For  that  the  said  answer  is  scandalous  from  and  in- 
cluding the  word  "  he,"  in  the  tenth  line  of  the  third  folio, 

0")    Rev.  Stat.  (1874)  201;  Rev.  Stat.  (1877)  187. 

[k)    1  Barb.  Ch.  Pr.  183;  Coleman  vs.  Lyne,  etc.,  4  Rand,  454. 

(7)     Clark  vs.  Tinslei/,  4  Rand.  250. 


EXCEPTIONS   TO  ANSWEE.  163 

Order  Expunging  Scandal  and  Impertinence. 

down  to  and  including  the  word  "  hindrance,"  in  the  fourth 
line  of  the  fourth  folio  thereof. 

Second. — For  that  the  said  answer  is  impertinent  from  and 
including,  etc.  {as  ahove,  and  so  on.) 

In  all  which  particulars  the  complainant  excepts  to  the  said 
answer  of  the  defendant,  C.  D.,  as  scandalous  or  impertinent ; 
and  insists  that  the  same  ought  to  be  expunged  from  the  said 
answer.  Sol.  for  Gomjplavnant. 

1^0.  67.     Order  to  expunge  scandal  and  inypertinence  from 

am,swer. 

{Ca/ption^  and  title  of  cause,  as  in  No.  79,  post.) 

The  answer  of  the  defendant,  0.  D.,  having  been  reported 
by  the  master  in  chancery,  to  whom  the  exceptions  for  scandal 
and  impertinence  were  referred,  to  be  scandalous  in  the  matter 
of  first,  third  and  fifth  exceptions,  and  impertinent  in  the 
matter  of  the  second  and  fowrth,  and  the  said  report  having 
become  absolute  {or  approved  hy  the  court,)  against  the  defend- 
ant, it  is  ordered  that  the  clerk  of  this  court  do  expunge  from 
the  said  answer,  such  scandalous  and  impertinent  matter,  accord- 
ing to  said  report.  And  it  is  further  ordered  that  the  said  C.  D. 
pay  to  the  complainant,  or  his  solicitor,  the  costs  of  the  said 

exceptions  and  the  proceedings  thereon,  within days  after 

service  of  a  copy  of  this  order,  and  of  the  taxed  bill  of  costs, 
on  him  or  his  solicitor,  or  that  an  attachment  issue  against  him. 


CHAPTER  IX. 


AMENDMENTS  TO  BILLS. 


A  court  will  permit  amendments  to  bills,  pleas,  answers  and 
replications,  on  such  terms  as  it  may  deem  proper,  so  that 
neither  party  be  surprised  nor  unreasonably  delayed  thereby ; 
"  and  no  amendment  shall  be  a  cause  for  a  continuance,  unless 
the  party  to  be  affected  thereby,  or  his  agent  or  attorney,  shall 
make  affidavit  that,  in  consequence  thereof,  he  is  unprepared  to 
proceed  to  trial  of  the  cause  at  that  term,  and  that  he  verily 
believes  that  if  the  cause  is  continued,  such  party  will  be  able 
to  make  such  preparation."  {a) 

A  court  of  equity  is  liberal  in  permitting  amendments  of 
the  pleadings,  that  complete  justice  may  be  done,  (b)  It  looks 
to  the  real  and  substantial  merits  of  the  case  ;  matters  of  form 
are  never  suffered  to  prejudice  the  rights  of  a  party.  When- 
ever the  complainant  discovers  a  defect  in  his  bill,  arising  from 
want  of  parties,  or  other  reasons,  if  the  cause  is  not  at  issue, 
he  may  obtain  leave,  as  of  course,  to  amend  his  bill,  (c) 

Amendments  of  bills  should  introduce  only  such  matters  as 
occurred  prior  to  the  filing  of  the  bill,  and  which  were  omitted 
by  mistake  or  ignorance  of  such  facts,  {d)  Matters  which  have 
occurred  subsequent  to  the  filing  of  the  bill,  ought  not  to  be 
introduced  by  amendment ;  {e)  because  as  the  amendments  are 

{a)   Rev.  Stat.  (1874)  203;  Rev.  Stat.  (1877)  188. 

ih)  Marble  vs.  Bonhotcl,  35  111.  240;  Wise  vs.  Ttviss,  54  111.  301;  Ch-egg 
vs.  Brorcer,  67  111.  525;  Barm  vs.  Bragg,  70  111.  283. 

ic)  Droullard  vs.  Baxter,  1  Scam.  191;  Heacock  vs.  Durand,  42  111.  230; 
Buckley  vs.  Corse,  Saxon,  N.  J.  504;  Smith  vs.  Bahcock,  3  Sumner,  410; 
Garlick  vs.  Strong,  3  Paicre,  Ch.  R.  440;  Erkkson  vs.  Raffniij,  79  111.  209; 
Marsh  vs.  Green,  79  111.  385. 

{d)  Burke  vs.  Smith,  15  111.  158;  Walker  vs.  Hallett,  1  Ala.  N.  S.  379; 
Milner  vs.  Harewood,  17  Ves.  144,  148  ;  Story's  Eq.  PI.  §  336,  337. 

{e)  Barton's  Suit  in  Eq.  120;  Story's  Eq.  PL  §  332-334;  Stafford  vs. 
Howlett,  1  Paige,  Ch.  R.  200;  Colclough  vs.  Erans,  4  Sim.  76;  Wright  vs. 
Howard,  6  Mad.  106 ;  Go2-)en  vs.  Flesher,  1  Bond,  440. 


AMENDMENTS   TO   BILLS.  165 


When  to  be  Made. 


held  to  constitute  part  of  the  same  record  as  the  original  bill, 
{f)  which  can  only  relate  to  facts  as  they  existed  at  the  time 
of  the  filing  of  the  bill ;  the  introduction  of  matters  of  a  pos- 
terior date  would  render  the  record  incongruous.  Matters, 
therefore,  occurring  since  the  filing  of  the  oi'iginal  bill,  should 
be  introduced  by  supplemental  bill,  and  not  by  amendment,  {g) 
Nor  can  a  bill  be  amended  by  inserting  therein  facts  known 
to  the  complainant  at  the  time  of  filing  the  bill,  unless  some 
excuse  is  given  for  the  omission.  (A)  And  amendments  can 
only  be  granted  when  the  bill  is  defective  in  parties  or  in  the 
prayer  for  relief,  or  in  the  omission  or  mistake  of  facts  and 
circumstances  connected  with  the  substance,  but  not  forming 
the  substance  itself,  nor  repugnant  thereto,  {i) 

When  to  he  made. — The  court  is  invested  with  the  discretion 
to  allow  amendments  to  a  bill  at  any  stage  of  the  case.  (^') 
They  may  be  made  at  the  hearing  to  correspond  with  the 
proof,  without  continuing  the  case,  unless  it  essentially  changes 
the  case  made  by  the  bill.  (^) 

It  not  unfrequently  happens  that  the  evidence  does  not  sup- 
port the  allegations  of  a  bill  precisely  in  the  form  in  which 
they  are  made ;  and  it  subserves  none  of  the  purposes  of 
justice  to  dismiss  the  bill  on  the  ground  of  a  variance  between 

(/)    yt'Te  vs.  Olynn,  2  Dick.  441 ;  Jupling  vs.  Stuart,  4  Ves.  619. 

ig)  Stafford  vs.  Rowlett,  1  Paige,  Ch.  R.  200 ;  ArclihisJiop  of  York  vs. 
Stapleton,  3  Atk.  136 ;  5  Pick.  276 ;  Burke  vs.  Smith,  15  111.  158. 

(A)    Whitmarsh  vs.  CarnpbeU,  2  Paige,  Ch.  67. 

(i)  Verplank  vs.  The  M.  Ins.  Co.  1  Edw.  Ch.  46 ;  Lyon  vs.  Tahnadge, 
1  Johns.  Ch.  184 ;  Badgers  vs.  Rodgers,  1  Paige,  Ch.  424 ;  Strickland  vs. 
Strickland,  12  Sim.  253  ;  1  Barb.  Ch.  Pr.  207 ;  Story's  Eq.  PI.  §  332,  614. 

(j)  Droullard  vs.  Baxter,  1  Scam.  191;  Jefferson  Go.  vs.  Ferguson,  IZ 
111.  33  :  McArtee,  vs.  Engari,  Id.  243  ;  Mason  vs.  Bair,  33  111.  195  ;  Jennings 
vs.  Springs,  1  Bailey,  Ch.  181 ;  6  Ala.  562  ;  Allen  vs.  Smith,  1  Leigh,  R.  331 ; 
Perkins  vs.  Hays,  Cooke,  Tenn.  189  ;  Farwell  vs.  Meyer,  35  111.  51  ;  Mar- 
ble vs.  Bonlwtel,  35  111.  240  ;  Craig  vs.  llie  People,  47  111.  487. 

{k)    Martin  vs.  Ecersal,  36  111.  222 ;  Metropolitan  Bank  vs.  Godfrey,  23 

111.  580;  Morgan  vs.  Smith,  11  111.  194;  Broicn  vs.  Welsh,  18  111.  347;  Be 

Wolf  vs.  Pratt,  42  111.  198  ;  Hewett  vs.  Dement,  57  111.  500 ;  Neale  vs.  Neale, 

9  Wall.  U.  S.  R.  9;  Uoyt  vs.  Tuxbury,  70  111.  331;  Murch  vs.  Mayers,  85  111. 

187. 


166  AMENDMENTS  TO   BILLS. 

When  to  be  Made. 


the  pleadings  and  the  proof,  when  a  slight  amendment  will 
render  the  testimony  admissible  ;  {])  nor  does  the  fact  that  the 
bill  is  veriiied  by  affidavit  necessarily  deprive  the  complainant 
of  the  benefit  of  an  amendment.  It  is,  however,  no  doubt 
true,  that  he  is  estopped  from  so  amending  his  bill  as  to  con- 
tradict facts  which  he  has  sworn  to  as  positively  true,  unless 
he  can  clearly  show  the  court  that  the  statement  was  made 
in  mistake.  But  when  it  only  enlarges  and  amplifies  the 
statement,  or  states  additional  facts,  there  is  no  objection  to 
allowing  the  amendment  to  be  made,  (m)  A  mere  formal 
amendment  of  a  bill  may  be  made  after  the  hearing,  without 
opening  the  case  to  let  in  new  proofs  on  the  part  of  the 
defendant,  {n)  When  an  amendment  is  allowed,  after  the 
ease  is  at  issue,  the  court  will  usually  impose  such  terms  as  it, 
in  its  discretion,  deems  proper,  in  order  that  undue  advantage 
cannot  be  taken  of  the  defendant.  (<?)  And  if  a  material 
amendment  is  permitted  at  the  trial,  and  the  defendant  is 
taken  by  surprise,  a  continuance  would  necessarily  be  granted, 
if  asked,  by  the  defendant,  {p) 

Where  a  bill  is  defective  from  the  omission  to  join  necessaiy 
parties  as   co-complainants,   or  for   the  joinder   of  improper 

(0  MarhU  vs.  Bonhotel,  35  111.  240 ;  Moshier  vs.  Knox  College,  33  111.  163 ; 
Wise  vs.  Twiss,  54  111.  302 ;  Hutchinson  vs.  Eeed,  1  Hoff.  Ch.  320 ;  Malin  vs. 
Malin,  2  Jolins.  Ch.  238  ;  3  Paige,  Ch.  R.  467 ;  Bailey  vs.  Bennett,  3  Younge 
&  Coll.  459  ;  Wither  vs.  Collier,  1  Clarke,  315. 

{m)  Marble  vs.  Bonlwtel,  35  111.  240 ;  Renwich  vs.  Wilson,  6  Johns.  Ch. 
E.  81 ;  Verplank  vs.  M.  Ins.  Co.  1  Edw.  Ch.  46 ;  North  B.  Bank  vs.  Rogers, 
8  Paige,  Ch.  R.  648  ;  Hinde,  Pr.  35. 

{n)  De  Wolf  vs.  Pratt,  43  111.  198 ;  Walden  vs.  Bodley,  14  Pet.  156 ; 
Ikans  vs.  Billings,  5  Ala.  550  ;  Sumrall  vs.  Ryan,  1  J.  J.  Marsh.  97 ;  Clifton 
vs.  Haig,  4  Dessaus.  330 ;  3  McCord,  Ch.  R.  170. 

((?)  Marble  vs.  Bonhotel,  35  111.  240 ;  Beekman  vs.  Waters,  3  Jolins.  Ch. 
R.  410  ;   Vertner  vs.  Griffitli,  Walker,  414. 

(p)  Moshier  vs.  Knox  College,  32  111.  155  ;  Beaumont  vs.  Boultbee,  5  Ves. 
485 ;  Cook  vs.  Martyn,  2  Atk.  3 ;  12  Ves.  215. 


AMENDMENTS   TO   BILLS.  167 

When  not  Allowed  —  Petition  for  Leave  to  Amend. 

parties,  it  may  be  amended  upon  payment  of  the  defendant's 
costs  of  the  term,  (q) 

While  amendments  may  be  made  at  any  stage  of  the  case, 
as  we  have  seen,  it  is  settled  that  it  must  be  done  at  the 
earliest  opportunity,  and  that  any  unreasonable  or  improper 
delay  will  deprive  the  party  of  the  favorable  exercise  of  the 
discretion  of  the  court,  (r)  Thus  the  court  will  not  give  a 
complainant  leave  to  amend  his  bill,  if  he  has  not  taken  any 
step  in  the  prosecution  of  the  suit  for  an  undue  length  of  time, 
as,  for  instance,  for  two  years  after  answers  put  in,  he  is  unable 
to  explain  the  delay,  (s) 

When  amendments  will  not  he  allowed. — Where,  on  de- 
murrer, a  bill  has  been  dismissed,  on  the  merits  of  the  case  as 
stated,  for  want  of  equity,  the  court  will  not  grant  leave  to 
amend,  if)  And  a  bill  sworn  to  cannot  be  amended  by 
striking  out  an  allegation,  except  upon  affidavit  showing  that 
it  was  inserted  hj  mistake,  and  how  such  mistake  occurred,  {u) 

No.  68.     Petition  for  leave  to  amend  hill,  after  rejplication. 

{Title  of  cause.) 

To   the   Honorable  ,   Judge  of  the  Court  of  the 

County  of ,  in  the  State  of , 

In  Chancery  sitting : 

The  petition  of  the  above-named  complainant,  respectfully 
represents  unto  your  honor,  that  the  defendant  has  put  in  his 

(g)  Noyes  vs.  Sawyer,  3  Vt.  160 ;  Arendell  vs.  Blackwell,  1  Dev.  Ch.  354 ; 
Stephens  vs.  Terrell,  3  Monr.  131 ;  Hoof  man  vs.  Marshall,  1  J.  J.  Marsh.  64 ; 
Foster  vs.  Runt,  3  Bibb,  32  ;  Oayle  vs.  Singleton,  1  Stew.  56G  ;  Lindley  vs. 
Cravens,  2  Elackf.  42G ;  Park  vs.  Ballentine,  6  Blackf.  223 ;  Hutchinson  vs. 
Beed,  1  Hoff.  Ch.  R.  31G ;  Gorden  vs.  Holland,  3  Ired.  Ch.  362 ;  4  Hen.  & 
M.  475. 

(r)    1  Barb.  Ch.  Pr.  209  ;  1  Paige,  Ch.  209. 

(s)  Altree  vs.  Horden,  3  Lond.  Jurist,  81 ;  1  Barb.  Ch.  Pr.  209  ;  Vertner 
vs.  Griffith,  Walker,  414. 

{t)  Lyon  vs.  Tallmadge,  1  Johns.  Ch.  R.  184 ;  McCoinas  vs.  Minor, 
Walker,  513. 

(m)  North  River  Bank  vs.  Rogers,  8  Paige,  Ch.  R.  648 ;  Verplank  vs. 
Mer.  Ins.  Go.  1  Edw.  Ch.  R.  46 ;  Brown  vs.  Ricketts,  2  Johns.  Ch.  R.  425 ; 
^athan  vs.  Wiswall,  2  Ired.  294. 


168  AMENDMENTS   TO    BILLS. 

Order  for  Leave  to  Amend. 

answer  to  the  complainant's  bill ;  and  the  petitioner  has  filed 
his  replication  thereto,  bnt  no  witnesses  have  been  examined 
by  either  party.  {Let  the  petition  agree  with  the  facts})  That 
since  the  tiling  of  such  replication,  the  petitioner  has  been 
advised  by  his  counsel,  and  believes,  that  it  is  essential  to  his 
rights  in  tliis  cause,  that  the  bill  should  be  amended,  as  shown 
by  the  amended  bill  herewith  presented,  or,  by  adding  thereto 
the  following  statements,  etc.  {Here  insert  the  matter  pro- 
posed to  he  int7'oduGed.)  And  the  petitioner  further  represents, 
that  he  had  no  knowledge  of  the  facts  stated  in  said  proposed 
amended  bill  {or,  as  above  set  forth),  nor  was  he  aware  of  the 
necessity  of  inserting  them  in  his  bill,  until  after  said  replica- 
tion was  filed. 

The  petitioner,  therefore,  prays  that  he  may  be  at  liberty  to 
withdraw  his  said  replication,  and  amend  his  bill  by  adding  the 
facts  referred  to.  A.  B. 

{Add  jurat.) 

Where  the  petition  is  for  leave  to  amend  a  sworn  bill,  or  a  bill 
after  replication  is  filed,  the  matter  proposed  as  an  amendment 
should  be  annexed  to  the  petition,  and  the  truth  thereof  should 
be  sworn  to  in  addition  to  the  usual  jurat  upon  the  petition,  (-y) 

Where  the  petition  is  verified  by  the  complainant's  solicitor, 
reasons  should  be  shown  why  the  same  would  not  be  sworn  to 
by  the  complainants,  or  some  of  them,  {w) 

No.  69.     Order  for   leave  to   amend  hill,   after   a    general 

demurrer. 

{Caption  and  title  of  cause  as  in  No.  79,  post.) 

The  defendant,  C.  D.,  having  put  in  a  general  demurrer  to 
the  bill  of  complaint  in  this  cause,  for  want  of  equity,  on  mo- 
tion of  Mr. ,  of  counsel  for  the  complainant,  it  is  ordered 

that  the  complainant  have  leave  to  amend  his  bill  as  he  may 
be  advised,  upon  payment  of  the  costs  to  be  taxed.  It  is  fur- 
ther ordered  that  such  amendment  be  filed  with  the  clerk  of 
this  court  within days  from  this  date, 

(«)  E'irjcrs  vs.  De  Fi)rre  ',  3  Edw.  Ch.  U.  171  ;  li'^gers  vs.  Borjers,  1  Paige, 
Cli.  R.  424  ;  Whitmarsh  vs.  ■'  i,i/pbell,  2  Pa ige,  Ch.  R.  G7  ;  Walsh  vs.  SmytTie,  3 
Bland,  9 ;  Eoerett  vs.  Winn,  1  S.  &  M.  Ch.  R.  67 ;  Verplunk  vs.  Mer.  Ins. 
Co.  1  Edw.  Ch.  4G;   TFo/!  vs.  Coke,  1  Murphy,  191. 

{w)    Verplank  vs.  Mer.  Ins.  Co.  1  Edw.  Ch.  R.  46. 


AMENDMENTS   TO   BILLS.  169 

Form  of  an  Amendment  to  a  Bill. 

No.  70.     AmendTnent  to  a  hill. 

{Title  of  cause.) 

Amendment  to  the  bill  of  complaint  in  this  cause, 
made  pursuant  to  au  order  of  the  court,  entered 

on  the day  of ,  A.  D.  18 — . 

First. — In  the  third  line  of  the  second  folio  of  the  bill,  after 
the  word  "  and,"  interline,  "  to  wit,  on  or  about  the  first  day 
of  January,  A.  D.  1870." 

Second. — After  the  word  "  time,"  in  the  tenth  line  of  the 
sixth  folio,  insert  the  words  following.  {Here  insert  the  addi- 
tional matter  proposed.) 

Third. — Strike  out  the  words  "  did  convey,"  in  the  fourth 
line  of  the  eleventh  folio,  and  insert  in  lieu  thereof,  the  follow- 
ing :  "  was  about  to  convey." 

Fourth. — Add  the  name  of  "  E.  F.  of,  etc."  as  a  defendant, 
in  the  second  line  of  the  fourteenth  folio,  after  the  word  "  and." 

Sol.  for  the  Complainant 

An  amended  bill  should  state  no  more  of  the  original  bill 
than  is  necessary  to  introduce,  and  make  intelligible,  the  new 
matter;  nor  should  such  amendment  be  incorporated  in  the 
old  bill,  but  be  by  separate  bill,  {x) 

Amendments  to  a  bill  should  not  be  made  by  interlineations 
and  erasures  in  the  original  bill,  but  by  filing  the  same  on  a 
separate  paper,  {y)  The  practice  of  amending  pleadings  by 
erasures  and  interlineations  ought  not  to  be  tolerated  by  the 
courts.  A  paper  thus  disfigured  will  be  stricken  from  the 
files,  (s) 

{x)  Pierce  vs.  West,  3  Wash.  C.  C.  R.  354 ;  Bennington  Iron  Co.  vs.  Camp- 
hell,  2  Paige,  Ch.  R.  159 ;  Hunt  vs.  Holland,  3  Paige,  Ch.  R.  78 ;  Stanberry 
vs.  Moore,  56  111.  473. 

iy)    Walsh  vs.  Smytlie,  3  Bland,  9 ;  Benzein  vs.  Lovelass,  Cam.  &  Nor.  521 
Hinde,  Pr.  22. 

(z)    Stansberry  vs.  Moore,  56  111.  473. 


CHAPTER  X. 


KEPLICATION. 


Nature  of. — After  the  defendant  has  put  in  his  answer,  the 
complainant  is  to  determine  whether  the  answer  is  sufficient, 
and  whether  he  will  amend  the  hill.  If  he  neither  excepts  to 
the  answer  for  insufficiency,  nor  amends  his  bill,  the  usual  step 
next  taken  by  him  is  to  file  a  replication.  This  replication, 
according  to  the  present  practice,  consists  of  a  general  averment 
only,  of  the  truth  and  sufficiency  of  the  complainant's  bill,  and 
as  general  a  denial  of  the  same  properties  in  the  answer  of  the 
defendant ;  but  formerly,  if  the  defendant's  answer  stated  new 
facts,  in  opposition  to  those  alleged  in  the  bill,  the  complainant 
was  accustomed  to  reply  by  a  special  statement  of  other  facts, 
not  before  charged.  This  produced  a  rejoinder  by  the  defend- 
ant, asserting  the  truth  and  sufficiency  of  his  answer,  and 
alleging  the  contrary  of  the  complainant's  replication.  A  sur- 
rejoinder frequently  followed  the  rejoinder,  and  a  rebutter  the 
surrejoinder,  and  so  on  as  long  as  new  facts  were  set  forth  by 
one  party  and  denied  by  the  other.  But  the  expense,  incon- 
venience and  delay  attending  these  multifarious  pleadings  on 
each  side,  gave  rise  to  an  alteration  of  the  practice,  {a) 

Special  replications  are  now  superseded  by  the  general  repli- 
cation, which  merely  puts  in  issue  the  truth  of  the  answer. 
Amendments  of  the  bill  have  been  substituted  in  the  place  of 
special  replications,  and  a  defendant  may  now  do  in  an  amend- 
ment of  a  bill,  what  he  formerly  could  by  a  special  replication.  (5) 

Within  what  time  to  he  filed. — By  the  66th  rule  of  the 
Revised  Rules  of  Practice  for  the  Courts  of  Equity  of  the  United 
States,  of  1870,  the  complainant  is  required  to  file  the  general 
replication  to  the  answer,  on  or  before  the  next  succeeding 

ifl)    Barton's  Suit  in  Eq.  124  ;  Story's  Eq.  PI.  §  877,  878. 
(6)    Tarleton  vs.  Veites,  1  Gilm.  470;  Schaffer  vs.  Weed,S  Gil m.  511 ; 
White  vs.  Morrison,  11  111.  861. 


EEPLICATION.  171 


When  to  be  Filed  —  Issue  Made. 


rule-day  thereafter.  If  the  complainant  omits  to  file  such 
replication  within  the  prescribed  period,  the  defendant  will  be 
entitled  to  an  order,  as  of  course,  for  a  dismissal  of  the  suit ; 
and  the  suit  shall  tliereu})on  stand  dismissed,  unless  the  court, 
or  a  judge  thereof,  shall,  upon  motion  for  cause  shown,  allow  a 
replication  to  be  filed  7iunG])ro  tuno^  the  complainant  submitting 
to  speed  the  cause,  and  to  such  other  terms  as  may  be  directed. 

The  practice  in  the  difierent  states  as  to  the  time  in  which  a 
replication  may  be  filed,  varies.  In  Illinois,  the  statute  pro- 
vides, that  the  replication  shall  be  filed  in  four  days  after  the 
complainant,  or  his  attorney,  shall  be  served  with  notice  of 
answer  filed,  (c)  The  court  will  sometimes  permit  a  replica- 
tion to  be  filed,  in  furtherance  of  justice,  after  a  case  is  called 
for  hearing,  when  it  has  been  omitted  by  accident  or  mistake,  {d) 

Where  the  defendant  treats  the  cause  jp  at  issue,  joins  in 
taking  depositions,  and  consents  to  se^he  cause  down  for 
hearing  on  the  bill,  answer,  exhibits,  and  depositions,  and  the 
cause  is  heard  accordingly,  he  cannot,  on  error,  insist  that  the 
proofs  shall  not  be  considered,  (e) 

"Where  a  replication  has  been  filed,  it  will  be  presumed  to 
have  been  filed  in  season,  until  the  contrary  is  proved.  (/*) 

Issue  made. — After  replication  is  filed,  the  cause  is  at  issue, 
and  is  ready  for  hearing. 

Where  the  parties  proceed  to  a  hearing  on  the  bill  and  answer, 
without  a  replication,  the  answer  will  be  taken  as  true,  so  far 
as  it  is  responsive  to  the  allegations  of  the  bill ;  and  no  evi- 
dence can  be  received  to  contradict  it,  except  matters  of  record 
to  which  the  answer  refers,  and  is  provable  by  such  record,  {g) 

(c)    Rev.  Stat.  (1874)  201;  Rev.  Stat.  (1877)  187. 

Id)  Moseley,  926;  Lord  Red.  267;  Armistead  vs.  Bozman,  1  Ired.  Ch.  R. 
117;  Sea  Insurance  Co.  vs.  Dai/,  9  Paige,  Ch.  R.  247. 

(e)    Marpel  vs.  Scott,  41  111.  50;  Corbus  vs.  Teed,  69  111.  205. 

(/)  Li/OJi  vs.  TaUniadge,  14  Johns.  R.  501. 

((/)  Rev.  Stat.  (1874)  201;  Rev.  Stat.  (1877)  187;  Derby  vs.  Gage,  38  111. 
27;  Chambers  vs.  Rowe,  30  111.  171;  Farrell  vs.  McKee,  Id.  226;  Beems  vs. 
Denham,  2  Scam.  58;  De  Wolf  vs.  Long,  2  Gilm.  679;  Pat/ne  vs.  Frazier,  4 
Scam.  55;  Trout  vs.  Emmons,  29  111.  433;  Nelson  vs.  Pinegar,  30  111.  473; 
Mason  vs.  McGirr,  28  111.  322;  Dooleij  vs.  Stq^p,  26.  111.  86;  Thomas  vs. 
Coultas,  76  111.  493. 


172  EEPLICATION. 


Effect  of — Withdrawing  —  Form  of  General  Replication. 

But  if  the  case  is  heard  upon  the  pleadings  and  evidence,  the 
replication  will  be  deemed  as  waived.  (A) 

Effect  of  filing. — If  the  complainant  files  a  replication  to  the 
answer,  after  he  is  apprised  of  the  necessity  of  an  amendment 
of  his  bill,  he  precludes  himself  from  making  such  amend- 
ment. (^) 

Withdrawing. — If  the  necessity  for  an  amendment  arises 
after  the  filing  of  the  replication,  the  complainant  should  make 
a  special  application  to  the  court  for  leave  to  withdraw  the 
replication,  for  the  purpose  of  amending,  [j)  Upon  which 
application  he  must  satisfy  the  court,  by  aflidavit,  that  the 
matter  of  the  proposed  amendment  is  material,  and  could  not, 
with  reasonable  diligence,  have  been  sooner  introduced  into 
the  bill.  (Jc)  But  this  practice  does  not  apply  to  amendments 
by  merely  adding  parties,  after  replication.  (Z) 

No.  71.     General  replication. 

In  the Court. 

A.  B.  )  Term,  18  — . 

vs.     y  In  Chancery. 
CD.) 

The  replication  of  A.  B.,  complainant,  to  the  answer 
of  C.  D.,  defendant. 
This  repliant  saving  and  reserving  unto  himself  all  and  aU 
manner  of  advantage  of  exception  to  the  manifold  insuSicien- 
cies  of  the  said  answer,  for  replication  thereunto,  says :  that  he 
will  aver  and  prove  his  said  bill  to  be  true,  certain  and  suffi- 
cient in  the  law  to  be  answered  unto ;  and  that  the  said  answer 
of  the  ^defendant  is  uncertain,  untrue  and  insufficient  to  be 
replied  unto  by  this  repliant ;  without  this,  that  any  other 
matter   or   thing   whatsoever   in   the  said   answer   contained 

(h)  Jameson  vs.  Conway,  5  Gilm.  227,  230 ;  Webb  vs.  The  Alton  etc.  5 

Gilm.  223 ;  Stark  vs.  Hillihut,  19  111.  344 ;  Marpel  vs.  Scott,  41  111.  50 ;  De- 

ma/ree  vs.  Driskill,  3  Blackf.  115  ;  Brooks  vs.  Mead,  Walk.  Ch.  389. 

(t)  Yermilyea  vs.  Odell,  4  Paige,  Ch.  R.  121. 

Ij)  1  Dan.  Ch.  Pr.  546 ;  2  lb.  389  ;  Coop.  Eq.  PI.  333  ;  1  Barb,  Ch.  Pr.  253 

{k)  Id.,  Id. 

(Z)  Brattle  vs.  Waterman,  4  Sim.  125. 


KEPLICATION.  173 


Form  of  General  Eeplication. 


material,  or  effectual  in  law  to  be  replied  unto,  confessed  and 
avoided,  traversed  or  denied,  is  true ;  all  which  matters  and 
things  this  repliant  is  and  will  be  ready  to  aver  and  prove,  as 
this  honorable  court  shall  direct,  and  humbly  prays  as  in  and 
by  his  said  bill  he  has  already  prayed. 

Sol.  for  Corwplainant. 


\ 


^ 


CHAPTER  XI 

TESTIMONY. 

Section  1.    Production  of  Books  and  Writinqs. 

2.  Depositions. 

3.  Evidence  taken  by  Master  in  Chancery,  ob  Spbcial 

Commission. 

4.  Oral  Testimony. 

As  soon  as  the  cause  is  at  issue,  the  parties  may  proceed  to 
take  testimony  for  the  pui'pose  of  establishing  their  respective 
cases.  If  no  replication  is  filed,  as  we  have  seen  in  the  last 
chapter,  the  answer  will  be  taken  as  true  so  far  as  it  is  respon- 
sive to  the  bill,  and  the  defendant  will  need  no  proof;  and  the 
complainant,  not  having  replied,  cannot  offer  any. 

The  space  allotted  to  this  work  precludes  our  going  into  an 

examination  of  the  subject  of  evidence,  any  further  than  to 

point  out  the  methods  of  taking  the  testimony  of  witnesses,  to 

be  read  on  the  hearing.     And  upon  this  we  will  necessarily  be 

•  confined  to  the  modes  as  they  exist  in  Illinois. 

Parties  may  take  evidence  before  the  Master  in  Chancery,  or 
by  depositions,  or  introduce  oral  testimony  on  the  hearing,  {a) 


SECTION  I. 
PKODTJCTION  OF  BOOKS  AND  WKCTINGS. 

"  The  several  courts  shall  have  power,  in  any  action  pending 
before  them,  upon  motion,  and  good  and  sufficient  cause  shown, 
and  reasonable  notice  thereof  given,  to  require  the  parties,  or 
either  of  them,  to  produce  books  or  writings  in  their  possession 
or  power,  which  contain  evidence  pertinent  to  the  issue."  (5) 

If  a  party  refuses  to  produce  books  and  papers,  his  opponent 

(a)  Grob  vs.  Cnshman,  45  111.  119. 

(b)  Rev.  Stat.  (1874)  202;  Rev.  Stat.  (1877)  188;  see  Morgan  vs.  Codies, 
81  111.  72. 


TESTIMONY.  175 


Production  of  Books,  etc. —  Petition  for,  etc. 


may  give  secondary  or  parol  proof  of  their  contents,  if  they 
are  shown  to  be  in  the  possession  of  the  opposite  party,  (c) 

The  notice  should  be  given  seasonably,  in  order  to  give  the 
party  reasonable  time  to  produce  the  original,  (d) 

A  certified  copy  of  a  deed  from  the  record  can  be  used,  on 
the  proper  preliminary  proof  being  made,  without  notice  to  the 
opposite  party  to  produce  the  original,  (e) 

For  a  form  of  notice  to  produce  books  or  documents,  see 
Puterbaugh's  Com.  Law  PI.  and  Pr.  pp.  771-772. 

Documents,  etc.,  in  ham,ds  of  third  persons. — If  documents, 
the  production  of  which  is  desired,  are  in  the  possession  of  one 
who  is  not  a  party  to  the  suit,  he  may  be,compelled  by  a  suh- 
poena  duces  tecuin  to  produce  them;  and  if  the  subpoena  is 
not  obeyed,  he  will  be  punished  for  contempt,  on  proof  by  affi- 
davit that  the  documents  are  in  his  custody,  {f) 

No.  72.    Petition  for  jproduciion  and  inspection  of  papers,  etc. 

In  the Court. 

Term,  18—. 

In  Chancery. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of . 

In  Chancery  sitting : 

The  petition  of  the  above-named  complainant  respectfully 
represents :  That  the  answer  of  the  defendant,  C.  D.,  has  been 
put  in  in  this  cause,  and  a  replication  thereto  has  been  filed, 
but  no  testimony  has  been  taken  in  the  cause,  nor  has  the 
same  been  noticed  for  hearing;  That  by  the  answer  of  the 
defendant,  he  admits  that  he  is  in  possession,  or  has  under  his 
control,  divers  books,  deeds,  letters,  accounts,  and  other  papers 
relating  to  the  matters  at  issue  in  this  cause.  And  your 
petitioner  further  represents  that  he  has  a  direct  and  immedi- 
ate interest  in  the  said  books,  deeds  and  other  papers,  and  that 

(c)    Rector  vs.  Rector,  3  Gilm.  105 ;  Prettyman  vs.  Wolston,  34  111.  190. 
{d)    Codyya.B:ough,20m.43;  Warner  vs.  GampbeU,26  Ul.  282;  BushneS. 
vs.  Bis7iop  Hill  Colony,  28  111.  204. 

(e)    Bowman  vs.  Wettig,  39  111.  416 ;  Deininger  vs.  McConnell,  41  111.  228. 
(/)  a  Greenl.  Ev.  §  305  ;  also  see  1  Id.  §  558,  559. 


176  TESTIMONY. 


Order  for  Production  of  Books,  etc.  —  Depositions. 

an  inspection  thereof  is.  necessary  to  enable  him  to  examine 
witnesses  in  this  cause,  and  to  prepare  such  cause  for  hearing. 
Your  petitioner,  therefore,  prays  that  the  defendant  may  be 
ordered  to  produce  to,  and  leave  with,  the  clerk  of  this  court 
the  books,  deeds,  and  other  papers  above  mentioned ;  and  that 
your  petitioner,  his  solicitor,  agent  or  counsel,  may  be  at 
liberty  to  inspect  and  peruse  the  same,  and  to  take  copies 
thereof,  or  extracts  therefrom,  as  he  may  be  advised. 

{Add  affidavit.)  A.  B, 

1^0.  73.     Order  for  production  of  hooks  and  papers. 

{Caption,  and  title  of  cause  as  in  iVb.  79,  post.) 

On  reading  and  filing  the  petition  of  the  complainant  in 

this  cause  duly  vewfied,  and,  on  motion  of  Mr. ,  solicitor 

for  the  complainant,  and  Mr. ,  solicitor  for  the  defendant, 

being  heard  in  opposition  thereto,  it  is  ordered  that  the  de- 
fendant   C.  D.  do   within  days   from   the  date  of  this 

order,  produce  to,  and  leave  with  the  clerk  of  this  court  the 
books,  deeds,  letters,  accounts,  and  other  papers  relating  to 
the  matters  at  issue  in  this  cause,  which  are  admitted  by  the 
defendant's  answer  to  be  in  his  possession  or  under  his  control ; 
and  that  the  complainant,  his  solicitor,  agent  or  counsel,  may 
be  at  liberty  to  inspect  and  peruse  the  same,  and  to  take 
copies  thereof,  or  extracts  therefrom,  as  he  may  be  advised, 
at  his  own  expense ;  but  that  the  defendant  be  at  liberty  to 
seal  up  such  parts  of  the  said  books,  deeds,  etc.,  as  he  shall 
make  oath,  do  not,  in  any  manner,  relate  to  the  matters  in 
controversy  in  this  suit. 


SECTION  II. 
DEPOSITIONS. 

For  forms  of  notices  and  interrogatories  to  be  used  in  taking 
depositions,  see  Puterbaugh's  Com.  Law  PI.  and  Pr.  pp.  775- 
785. 

Depositions  of  resident  witnesses. — The  statute  of  Illinois 
provides,  that  "  When  the  testimony  of  any  witness,  residing 
or  being  within  this  state,  shall  be  necessary  in  any  suit  in 
chancery  in  this  state,  the  party  wishing  to  use  the  same  may 
cause  the  deposition  of  such  witness  to  be  taken  before  any 


TESTIMONY.,  177 


Depositions  —  Non-resident  Witnesses,  etc. 


judge,  justice  of  the  peace,  clerk  of  a  court,  master  in 
chancery,  or  notary  public,  without  a  commission  or  filing 
interrogatories  for  such  purpose,  or  giving  to  the  adverse 
party  or  his  attorney  ten  days'  notice  of  the  time  and  place 
of  taking  the  same,  and  one  day  in  addition  thereto  (Sundays 
inclusive)  for  every  fifty  miles  travel  from  the  place  of  holding 
the  court  to  the  place  where  such  deposition  is  to  be  taken. 
If  the  party  entitled  to  notice  and  his  attorney  resides  in  the 
county  where  the  deposition  is  to  be  taken,  five  days'  notice 
shall  be  sufficient."  {g) 

Where  a  party  files  a  bill  he  may,  before  issue  joined,  take 
depositions  to  substantiate  its  averments ;  and  he  may  proceed 
to  take  his  depositions  de  hene  esse,  without  an  order  of  court 
for  that  purpose.  Should  the  necessity  for  such  depositions  be 
superseded  by  the  answer,  the  party  who  takes  them  must  pay 
the  cost.  (A) 

The  notice  to  take  the  deposition  before  the  clerk  of  a  par- 
ticular county  court,  need  not  give  the  name  of  that  officer,  (i) 

A  party  cannot  compel  his  adversary  to  appear  at  two  differ- 
ent places  on  the  same  day  to  take  depositions;  {j)  but 
objections  to  the  notice,  in  all  cases,  must  be  made  before  the 
hearing,  [h)  So  must  an  objection  to  the  competency  of  a 
witness  be  made  before .  the  hearing,  (Z)  and  decided  before 
hearing,  or  it  is  waived,  (m) 

Depositions  of  non-resident  witnesses,  etc. — "  When  the  testi- 
mony of  any  witness  residing  within  this  state,  more  than  one 
hundred  miles  from  the  place  of  holding  the  court,  or  not  resid- 
ing in  this  state,  or  who  is  engaged  in  the  military  or  naval 
service  of  this  state,  or  of  the  United  States,  and  is  out  of  this 

{g)    Rev.  Stat.  (1874)  492;  Rev.  Stat.  (1877)  478. 

Qi)    Doyle  vs.  Wiley,  15  111.  576. 

(i)    Hays  vs.  Borders,  1  Gilm.  64. 

(J)   HanMnson  vs.  Lombard,  25  111.  572. 

{k)  Winsloio  vs.  Neiclan,  45  111.  148,  149 ;  Corgan  vs.  Anderson,  80  111. 
98 ;  Lockwood  vs.  Mills,  39  111.  602. 

(0  Fasli  vs.  Blake,  38  111.  363;  WeVb  vs.  A.  M.  &  F.  Go.  5  Gilm.  ?,25; 
MosTiier  vs.  Enox  College,  33  111.  155. 

(to)  Phy  vs.  Clark,  35  111.  378. 
13 


178  TE8TIM0XY. 


Depositions  —  Non-resident  Witnesses,  etc. 


state,  shall  be  necessary  in  any  civil  cause  pending  in  any  court 
of  law  or  equity  in  this  state,  it  shall  be  lawful  for  the  party 
wishing  to  use  the  same,  on  giving  to  the  adverse  party,  or  his 
attorney,  ten  days'  previous  notice,  together  with  a  copy  of  the 
interrogatories  intended  to  be  put  to  such  witness,  to  sue  out 
from  the  proper  clerk's  office  a  dedimus  potestatem  or  com- 
mission, under  the  seal  of  the  court,  directed  to  any  compe- 
tent and  disinterested  person,  as  commissioner,  or  to  any  judge, 
master  in  chancery,  notary  public  or  justice  of  the  peace  of  the 
county  or  city  in  which  such  witness  may  reside ;  or  in  case  it 
is  to  take  the  testimony  of  a  person  engaged  in  such  military 
service,  '  to  any  commissioned  officer  in  the  military  or  naval 
service  of  this  state  or  the  United  States,'  authorizing  and 
requiring  him  to  cause  such  witness  to  come  before  him,  at 
such  time  and  place  as  he  may  designate  and  appoint,  and 
faithfully  to  take  his  deposition,  upon  all  such  interrogatories 
as  may  be  inclosed  with  or  attached  to  said  commission,  both 
on  the  part  of  the  plaintiff  and  defendant,  and  none  other ;  and 
to  certify  the  same,  when  thus  taken,  together  with  the  said 
commission  and  interrogatories,  into  the  court  in  which  such 
cause  shall  be  pending,  with  the  least  possible  delay."  {n) 

The  notice  must  be  substantially  as  provided  by  the  stat- 
ute ;  {o)  but  it  need  not  give  the  name  of  the  commissioner,  as 
he  is  appointed  by  the  clerk  of  the  court,  {p) 

Notice  when  opposite  party  is  a  non-resident,  or  cannot  he 
fov/nd. — The  statute  provides,  that,  "  When  the  deposition  of 
any  witness  is  desired  to  be  taken,  under  the  provisions  of  this 
act,  and  the  adverse  party  is  not  a  resident  of  the  county  in 
which  the  suit  is  pending,  or  is  in  default,  and  no  attorney  has 
appeared  for  him  in  such  case,  upon  filing  an  affidavit  of  such 
fact,  and  stating  the  place  of  residence  of  such  adverse  party, 
if  known,  or  that,  upon  diligent  inquiry,  his  place  of  residence 

(n)  Rev.  Stat.  (1874)  492;  Rev.  Stat.  (1877)  479.  For  forms  to  be  used 
under  this  section,  see  Puterbaugli's  Com.  Law  PI.  and  Pr.  pp.  779-785,  and 
remarks  thereon. 

(o)    Corgan  vs.  Anderson,  30  111.  95. 

(p)    Cole  vs.  Choteati,  18  111.  442. 


TESTIMONY.  179 


Depositions  of  Non-resident  Witnesses,  etc. 


cannot  be  ascertained,  the  notice  required  by  this  act  may 
be  given  by  sending  a  copy  thereof  by  mail,  postage  paid, 
addressed  to  such  party  at  his  place  of  residence,  if  known,  or, 
if  not  known,  by  posting  a  copy  of  such  notice  at  the  door  of 
the  court  house  where  the  suit  is  pending,  or  publishing  the 
same  in  the  nearest  newspaper ;  and  when  interrogatories  are 
required,  filing  a  copy  thereof  with  the  clerk  of  the  court,  ten 
days  before  the  time  of  suing  out  such  commission.  (^) 

Of  non-resident  witnesses,  upon  oral  interrogatories,  etc. — 
The  statute  provides,  in  this  regard,  as  follows :  "When  a  party 
shall  desire  to  take  the  evidence  of  a  non-resident  witness,  to  be 
used  in  any  cause  pending  in  this  state,  the  party  desiring  the 
same,  or  where  notice  shall  have  been  given,  that  a  commission 
to  take  the  testimony  of  a  non-resident  witness,  will  be  applied 
for,  the  opposite  party,  upon  giving  the  other  three  days'  notipe, 
in  writing,  of  his  election  to  do  so,  may  have  a  commission, 
directed  in  the  same  manner,  as  provided  in  section  twenty-six 
of  this  act,  to  take  such  evidence,  upon  interrogatories  to  be 
propounded  to  the  witness  orally ;  upon  the  taking  of  which, 
each  party  may  appear  before  the  commissioner,  in  person,  or 
by  attorney,  and  interrogate  the  witness.  The  party  desiring 
such  testimony,  shall  give  to  the  other  the  following  notice  of 
the  time  and  place  of  taking  the  same,  to  wit :  ten  days,  and  one 
day  in  addition  thereto  (Sundays  included),  for  every  one  hun- 
dred miles'  travel  from  the  place  of  holding  the  court  to  the 
place  where  such  deposition  is  to  be  taken. 

"  When  a  party  to  a  suit  shall  give  the  opposite  party  notice 
to  take  a  deposition  upon  oral  interrogatories,  and  shall  fail  to 
take  the  same  accordingly,  unless  such  failure  be  on  account 
of  the  non-attendance  of  the  witness,  not  occasioned  by  the 
fault  of  the  party  giving  the  notice,  or  some  other  unavoid- 
able cause,  the  party  notified,  if  he  shall  attend  himself,  or  by 
attorney,  agreeable  to  the  notice,  shall  be  entitled  to  two  dollars 
per  day  for  each  day  he  may  attend  under  such  notice,  and  to 

iq)  Rev.  Stat.  (1874)  492;  Rev.  Stat.  (1877)  479;  see  Pile  vs.  McBratney, 
15  111.  319. 


180  TESTIMONY. 


Depositions  —  Manner  of  Taking,  etc. 


six  cents  per  mile  for  every  mile  that  he  shall  necessarily  travel 
in  going  to,  or  returning  from,  the  place  designated  to  take  the 
deposition,  to  be  allowed  by  the  court  where  the  suit  is  pend- 
ing, and  for  which  execution  may  issue."  {r) 

Manner  of  taking^  certifying  and  returning  depositions. — 
The  statute  requires  that  "  previous  to  the  examination  of  any 
witness  whose  deposition  is  about  to  be  taken  as  aforesaid,  he 
or  she  shall  be  sworn  (or  affirmed)  by  the  person  or  persons 
authorized  to  take  the  same,  to  testify  the  truth  in  relation  to 
the  matter  in  controversy,  so  far  as  he  or  she  may  be  interro- 
gated ;  whereupon  the  said  commissioner,  judge,  master  in 
chancery,  notary  public,  justice  of  the  peace,  clerk,  or  other 
person  authorized  to  take  depositions  (as  the  case  may  be),  shall 
proceed  to  examine  such  witness,  upon  all  such  interrogatories 
as  may  be  inclosed  with,  or  attached  to  any  such  commission 
as  aforesaid,  and  which  are  directed  to  be  put  to  such  witness, 
or,  where  the  testimony  is  taken  upon  oral  interrogatories,  npon 
all  such  interrogatories  as  may  be  directed  to  be  put  by  either 
party  litigant;  and  shall  cause  such  interrogatories,  together 
with  the  answers  of  the  witness  thereto  to  be  reduced  to 
writing  in  the  order  in  which  they  shall  be  proposed  and 
answered,  and  signed  by  such  witness ;  after  which  it  shall  be 
the  duty  of  the  person  taking  such  deposition,  to  annex  at  the 
foot  thereof  a  certificate,  subscribed  by  himself,  stating  that  it 
was  sworn  to  and  signed  by  the  deponent,  and  the  time  and 
place  when  and  where  the  same  was  taken.  And  every  such 
depcfsition,  when  thus  taken  and  subscribed,  and  all  exliibits 
produced  to  the  said  commissioner,  judge,  master  in  chancery, 
notary  public,  justice  of  the  peace,  or  clerk,  or  other  person 
authorized  to  take  depositions,  as  aforesaid,  or  which  shall  be 
proved  or  referred  to  by  any  witness,  together  with  the  com- 
mission and  interrogatories,  if  any,  shall  be  inclosed,  sealed 
up,  and  directed  to  the  clerk  of  the  court  in  which  the  action 
shall  be  pending,  with  the  names  of  the  parties  litigant  indorsed 
therein :  Provided,  That  when  any  deposition  shall  be  taken 
as  aforesaid,  by  any  judge,  master  in  chancery,  notary  public 

(r)    Rev.  Stafc.  (1874)  492;  Rev.  Stat.  (1877)  479. 


TESTIMONY.  181 


Depositions  —  Manner  of  Taking,  etc. 


or  justice  of  the  peace,  out  of  this  state,  or  other  officer,  such 
return  shall  be  accompanied  by  a  certificate  of  his  official  char- 
acter, under  the  great  seal  of  the  state,  or  under  the  seal  of  the 
proper  court  of  record  of  the  county  or  city  wherein  such 
deposition  shall  be  taken,  {s) 

It  is  no  objection  that  the  oath  administered  to  a  witness 
was  more  comprehensive  than  the  statute  requires,  (t)  And  the 
court  will  presume  it  was  administered  at  the  proper  time ;  (u) 
and  that  the  deposition  was  taken  at  the  proper  place,  {v) 

A  leading  or  improper  interrogatory  must  be  objected  to  at 
the  first  opportunity,  or  it  is  waived ;  (w)  but  leading  questions 
are  not  always  objectionable,  {x) 

Written  interrogatories  need  not  necessarily  be  copied  into 
the  deposition,  (y) 

A  party  cannot  object  that  the  interrogatories  of  the  adverse 
party  are  not  fnlly  answered,  (s) 

A  mistake  in  the  name  of  a  witness  will  be  fatal,  although 
cross-interrogatories  are  filed  ;  (a)  but  proper  initials  of  Chris- 
tian names  will  be  presumed  to  be  correct.  (5) 

The  certificate  of  the  officer  taking  the  deposition  need  not 
state  that  the  deposition  was  signed  by  the  witness,  if  his  name 
appears  at  the  end  thereof,  (c)  It  is  sufficient  if  the  certificate 
states  that  the  deposition  was  taken  at  the  time  mentioned  in 
the  caption,  {d)  And  it  has  been  held  that  the  time  and  place 
were  not  essential  to  be  stated  in  the  certificate,  (e) 

(s)  R(>v.  Stat.  (1874)  493;  Rev.  Stat.  (1877)  480. 

{t)  Ballance  vs.  Underhill,  3  Scam.  457. 

(tt)  Id. 

(®)  County  of  Green  vs.  Bledsoe,  12  111.  271,  273. 

(w)  Kimball  vs.  Cook,  1  Gilm.  424,423  ;  Goodrich  vs.  Hanson,  33  111.  499, 

{x)  Forsyth  vs.  Baxter,  2  Scam.  9. 

{y)  Hawks  vs.  Lands,  3  Gilm.  227. 

(2)  Cole  vs.  Choteau,  18  111.  448. 

(fit)  Scholes  vs.  Acherland,  13  111.  651;  see  Kendall  vs.  Limhurg,  69  111.  356. 

(6)  Curtiss  vs.  Martin,  20  111.  557. 

(c)  Ballance  vs.  JJndei'Jiill,  3  Scam.  453  ;  County  of  Green  vs.  Bledsoe,  12 
111.  271. 

(d)  Railroad  Co.  vs.  Coicles,  32  111.  116. 

(e)  Phelps  vs.  Young,  Breese,  (Beclier's  ed.)  327  ;  see  Observations,  Puter- 
baugh's  Com.  Law  PI.  and  Pr.  pp.  780-785. 


182  TESTIMONY. 


Evidence  taken  by  Master,  etc. 


Instructions^etc.^  for  taking  depositions. — In  addition  to  the 
statutory  provision  which  we  have  given,  the  pleader  is  referred 
to  Puterbaugh's  Com.  Law  PL  and  Pr.  p.  781,  where  instruc- 
tions and  forms  for  taking,  certifying  and  returning  of  deposi- 
tions are  given. 

Interpreters  in  taking  dejyositions. — ^"  Interpreters  may  be 
sworn  truly  to  interpret,  when  necessary,  in  taking  depo- 
sitions. (^/) 

SECTION  III. 

EVIDENCE    TAKEN    BY    MASTER    IN    CHANCEKY,    OR    SPECIAL 
COMMISSIONER. 

The  statute  of  Illinois  provides  that,  "  the  court  may,  upon 
default,  or  upon  issue  being  joined,  refer  the  cause  to  a  master 
in  chancery,  or  special  commissioner,  to  take  and  report  evi- 
dence, with  or  without  his  conclusions  thereupon." 

A  master  in  chancery  can  only  act  in  a  case  in  court,  when 
ordered  by  the  court.  An  order  of  reference  is  therefore 
necessary,  before  he  is  authorized  to  take  testimony ;  {g")  but 
if  a  decree  is  rendered,  based  upon  his  report,  it  is  a  sufficient 
recognition.  (A) 

It  is  in  many  cases  proper  and  necessary  for  a  court  to 
appoint  a  special  master  or  commissioner.  If  the  regular  master 
is  a  solicitor  in  the  case,  it  would  be  error  to  refer  it  to  him  to 
take  proof.  (^)  And  if  a  court  appoint  a  special  master  to  per- 
form the  duties  of  the  regular  master,  it  will  be  presumed  to 
have  done  so  for  good  reasons,  whether  they  appear  on  the 
record  or  not.  (^') 

When  a  disputed  question  of  fact  is  referred  to  tlie  master  in 
chancery,  it  is  his  duty  to  appoint  a  day  for  the  examination 

if)   Rev.  Stat.  (1874)  496;  Rev.  Stat.  (1877)  482. 

ig)    Preston  vs.  Hodgen,  50  111.  56  ;  see  Fischer  vs.  Fischer,  54  111.  231. 
(A)    Hess  vs.  Voss,  53  111.  473. 

(i)  Wilhite  vs.  Pearce,  47  111.  413 ;  Wiite  vs.  Hoffacker,  27  111.  329  ;  Davia 
VB.  Davis,  30  111.  180. 

{J)    Farnsworth  vs.  Strasler,  12  111.  482. 


TESTIMONY.  183 


Evidence  taken  before  Master  —  Order  of  Reference. 

of  witnesses  before  him,  of  which  the  parties  or  their  solicitors 
should  receive  due  notice.  He  should  take  down  the  testi- 
mony, so  that  the  same  may  be  used  by  the  court  if  necessary ; 
and  should  report  in  writing  the  facts,  and  his  conclusions 
thereon  ;  and  the  questions  of  law  may  be  reserved  for  the 
court.  Each  party  should  have  notice  of  the  report  before  it 
is  made,  and  may  iile  exceptions  thereto  before  the  master,  to 
enable  him  to  correct  it  if  he  thinks  proper ;  and  if  the  master 
still  adheres  to  his  report,  he  returns  it  into  court,  where  the 
party  objecting  may  file  exceptions ;  upon  the  hearing  of  which, 
the  whole  evidence  is  brought  forward,  and  passes  in  review 
before  the  court.  Qc) 

Parties  must  produce  their  testimony  at  the  time  and  place 
appointed  by  the  m'aster.  (l)  In  cases  of  default  and  reference, 
no  notice  of  the  time  and  place  of  taking  tlie  testimony  is 
necessary.    But  the  parties  may  appear  and  file  exceptions,  (m) 

If  exceptions  are  not  taken  before  the  master,  and  overruled 
by  him,  the  report  cannot  be  questioned  before  the  appellate 
court,  {n)  But  if  an  improper  decree  is  rendered,  it  will  be 
reversed,  although  no  exceptions  were  made  to  the  master's 
report,  (o) 

iVb.  74"     Order  of  reference  to  master  to  take  'proof. 

{Caption,  and  title  of  cause  as  in  No.  79,  post.) 

This  cause  came  on  to  be  heard  (or  to  be  further  heard,  as 
the  case  may  be,)  at  this  term,  and  was  argued  by  counsel ;  and 
thereupon,  upon  consideration  thereof,  it  was  ordered,  adjudged 
and  decreed  as  follows,  viz. :  that  this  cause  be  and  the  same  is 
hereby  referred  to  the  master  in  chancery  of  this  court,  to  take 
the  proof  of  the  respective  parties ;  that  the  said  master  first 
give  notice  to  the  said  parties  respectively,  of  the  time  and 

{k)  McClay  vs.  Norris,  4  Gilm.  370 ;  Brockman  vs.  Aulger,  12  111.  277 ; 
WJiiteside  vs.  PuUiam,  25  111.  285  ;  Sutphen  vs.  Cushman,  35  111.  202  ;  Las- 
well  vs.  Bobbins,  39  111.  210;  Campbell  vs.  Hannan,  43  111.  19;  Story  va. 
Luingston,  13  Pet.  U.  S.  R.  359;  Gunnell  vs.  5ir(Z,10  Wall.  U.  S.  R.  306. 

{I)    Whiteside  vs.  Pulliam,  25  111.  285. 

(m)  Moore  vs.  Titman,  33  111.  359. 

{n)   Beigard.  vs.  McNeil,  38  111.  401. 

(o)    Strang  vs.  Allen,  44  111.  429. 


184  TESTIMONY. 


Master's  Report  of  Testimony. 


Elace  where  such  proof  will  be  taken ;  and  cause  to  come 
efore  him  all  such  witnesses  as  the  respective  parties  may 
desire,  and  to  examine  them  severally  on  oath,  and  reduce  their 
testimony  to  writing,  and  report  the  same,  together  with  his 
conclusions  to  the  court. 


No.  75.     Master's  report  of  testimony. 

In  the Court. 

A.  B.  et  al.  )  Term,  18—. 

vs.  >  In  Chancery. 

C.  D.  et  al  ) 
To   the   Honorable  ,   Judge  of  the  Court  of  the 

County  of ,  in  the  State  of , 

In  Chancery  sitting: 

In  pursuance  of  an  order  of  this  court,  made  in  the  above 

entitled  cause,  on  the day  of ,  18 — ,  whereby  it  was 

referred  to  the  master  in  chancery  of  this  court  to  take  the 
proof  of  the  respective  parties,  and  report  the  same  to  the 
court  r 

I,  the  6,^d  master  in  chancery,  do  hereby  respectfully  report 
that,  having  first  given  a, written  notice  to  the  said  parties, 
respectively,  of  the  time  and  place,  when  and  where,  the 
said  testimony  would  be  taken,  and  caused  to  come  before  me 
all  such  wittiesses  as  the  respective  parties  desired  or  made 
known  to  me,  and  having  been  attended  by  the  solicitors  of 

the  respective  parties,  I  did,  on  the day  of ,  18 — ,  at 

my  office  in ,  proceed  to  take  the  proofs  of  the  respective 

parties ;  and  the  several  witnesses  •  attending  having  been 
severally  sworn,  and  examined  by  me,  I  reduced  their  testi- 
mony to  writing,  and  have  attached  the  same  hereto,  and  make 
the  same  a  part  of  this  report.    ■ 

I  would  further  report  that,  etc.  {Here  insert  conclusions 
of  facts),  and  would,  therefore,  recommend  that,  etc.  {Here 
%nsert  such  recommendation  as  the  facts  may  warrant). 

All  of  which  is  respectfully  submitted. 

,  Master  in  Chancery. 

Dated  this day  of ,  18 — . 

Either  party  may  file  objections  to  the  master's  report  before 
he  returns  it  into  court.  The  objections  may  be  in  the  follow- 
ing form : 


TESTIMONY.  185 


Objections  to  Master's  Report  —  Exceptions  to  Master's  Report. 

No.  76.     Objections  to  master's  report. 

In  the Court. 

A.  B.  et  al.  \  Term,  18—. 

vs.  >  In  Cbancery. 

C.  D.  et  al.  ) 

Objections  taken  by  the  above-named  defendants  to 
the  report  of  the  Master  in  Chancery,  to  whom 
this  cause  stands  referred  to  take  proofs. 
First. — For  that  the  said  master  has,  etc.     {Here  state  the 
ground  of  objection.) 

Second. — For  that,  etc.  {and  so  on.) 

In  all  which  particulars  the  said  defendants  object  to  the 
said  report,  and  submit  that  the  same  ought  to  be  varied  and 
altered.  ,  Sol.  for  Defendants. 

If  the  master  adheres  to  his  report,  he  returns  it  into  court, 
where  the  party  objecting  may  file  his  exceptions. 

No.  77.     Excej>tions  to  inaster^s  rejport. 

In  the Court. 

A.  B.  et  al.  )  Term,  18—. 

vs.  y  In  Chancery. 

C.  D.  et  al.  ) 

Exceptions  taken  by  the  above-named  defendants  to 
the  report  of  the  Master  in  Chancery,  to  whom 
this  cause  was  referred  to  take  proof,  etc.,  by  an 
order  made  herein  on,  etc.,  and  which  report  bears 
date  on,  etc. 
First  exception. — For  that  the  said  master  has,  etc.  {Here 
insert  the  ground  of  exception). 

Second  exception. — For  that,  etc.  {and  so  on.) 
Wherefore  the  said  defendants  do  except  to  the  said  report, 
and  appeal   therefrom  to  the  judgment  of  this  court. 

,  Sol.  for  Defendants. 

The  report  of  a  master  is  received  as  true  wliere  no  excep- 
tions are  taken,  and  the  exceptions  are  to  be  regarded  so  far 
only  as  they  are  supported  by  the  special  statement  of  the 
master,  or  by  evidence  which  ought  to  be  brought  before  the 


ISG  TESTIMONY. 


Exceptions  to  Master's  Report — Oral  Testimony. 

court  by  a  reference  to  the  particular  testimony  on  which  the 
exceptor  relies,  (j?) 

Exceptions  to  a  master's  report  must  state  article  by  article 
those  partg  of  the  report  which  are  intended  to  be  excepted  to ; 
the  exceptions  are  in  the  nature  of  a  special  demurrer,  and  the 
party  objecting  must  point  out  the  error,  otherwise  the  part 
not  excepted  to  will  be  taken  as  admitted,  {q) 

No  exceptions  can  be  taken  to  the  report  of  a  master  unless 
the  objection  be  made  before  him,  previously  to  his  signing  his 
report,  (r) 

Where  a  cause  is  referred  to  a  master  to  examine  and  report 
as  to  any  facts  in  the  case,  it  is  his  duty  to  draw  the  conclu- 
sions from  the  evidence  produced  before  him,  and  to  report 
that  conclusion  only  ;  and  it  is  irregular  and  improper  for  him 
to  set  forth  the  evidence  in  his  report  without  the  special 
direction  of  the  court.  If  either  party  excepts  to  the  report, 
he  may  then  obtain  certified  copies  from  the  master,  of  the 
depositions,  or  other  evidence  on  which  the  decision  of  the 
master  was  founded,  to  be  used  on  the  argument  of  the  excep- 
tion, {s) 

SECTION  IV. 

OKAL    TESTIMONY. 

The  statute  of  Illinois  provides  that  "  on  the  trial  of  every 
suit  in  chancery,  oral  testimony  shall  be  taken  when  desired 
by  either  party,  {t) 

Independent  of  this  statute  it  was  held,  that  the  court  has 

ip)   Harding  vs.  Handy,  11  Wheat.  103;  Prince  vs.  Cutler,  69  111.  267. 

[q)  Story  vs.  Livingston,  13  Pet.  U.  S.  R.  359;  Dexter  vs.  Arnold,  2  Sum- 
ner, 108;   Wilkes  vs.  Rogers,  6  Johns.  Ch.  R.  566. 

(r)  Methodist  Church  vs.  Jaques,  3  Johns.  Ch.  R.  77;  Becl'ivith  vs.  Butler^ 
1  Wash.  Va.  224;  Foote  vs.  Van  Ransi,  1  Hill,  Ch.  R.  185;  Lewis  vs.  Leivis, 
Minor,  35;  Pennell  vs.  Lamar  Ins.  Co.,  73  111.  303 

(s)  Prince  vs.  Cutler,  69  111.  267:  Mott  vs.  Harrington,  15  Vt.  185;  Good- 
man vs.  Jones,  26  Conn.  264;  In  the  matter  of  Hemiiip,  3  Paige,  306. 

{t)    Rev.  Stat.  (1874)  494;  Rev.  Stat.  (1877)  481. 


TESTIMONY.  187 


Oral  Testimony  at  Hearing 


no  right  to  prevent  a  party  from  offering  oral  testimony  upon 
the  trial  of  a  case  in  chancery,  (w) 

And  an  order  of  court  made  during  the  progress  of  the 
cause,  that  a  party  shall  close  his  proof  by  a  day  named,  can- 
not affect  the  right  of  such  party  to  introduce  oral  testimony 
on  the  hearing,  (v) 

This  rule,  however,  only  affects  the  mode  of  taking  testi- 
mony, and  does  not  dispense  with  the  necessity  of  the  testi- 
mony appearing  of  record.  The  testimony  may  be  preserved 
in  the  record  by  a  statement  in  the  decree,  or  a  certificate  of 
the  judge,  or  in  the  master's  report,  (w) 

The  statute  referred  to  does  not  apply  to  mechanic's  lien 
cases,  (a?)  where  exceptions  to  evidence  must  be  taken  and 
preserved  as  in  common  law  cases.  (2/) 

(m)    Owens  vs.  Ranstead,  22  Til.  161. 

{v)    Maker  vs.  Bull,  39  111.  5..,  Groh  vs.  Cushman,  45  111.  119. 

(ir)  White  vs.  Morrison,  11  111.  365;  Ward  vs.  Owetis,  12  111.  283;  Nichols 
vs.  Thornton,  16  111.  113;  Moore  vs.  Trustees,  19  111.  83;  Coolei/  vs.  Scarlett, 
38  111.  316;  Quigley  vs.  Roberts,  44  111.  503;  Martin  vs.  Hargardine,  46  111. 
322;  Willhiteys.  Pearce,  47  111.  413;  Preston  vs.  Hodgen,  50  111.  57;  Bree\s. 
Bree;  51  111.  367;  Walker  vs.  Carij,  53  111.  470;  Forth  vs.  Town  of  Xenia,  54 
111.  210;  BrocTcenhrongh  vs.  Dresser.  67  111.  225. 

(x)   Kidder  vs.  Aholtz;  36  111.  481. 

{y)   Board  etc.  vs.  Greenbaum,  39  111.  615. 


CHAPTER  XII. 

FEIGNED    ISSUES TRIALS    BY    JURIES. 

Nature  of. — A  feigned  issue  is  an  issue  brouglit  by  consent 
of  the  parties,  or  the  direction  of  a  court  of  equity,  or  such 
courts  as  possess  equitable  powers,  to  determine  before  a  jury 
some  disputed  matter  of  fact,  which  the  court  has  not  the 
power,  or  is  unwilling  to  decide,  {x) 

There  are  two  methods  of  trying  questions  of  fact  by  a  jury, 
on  issues  joined  in  chancery,  viz. :  by  feigned  issues  awarded 
under  the  old  practice,  and  by  issues  of  facts  under  the 
statute,  {y) 

It  is  discretionary  with  the  chancellor  to  require  issues  of 
fact  to  be  tried  by  a  jury  at  any  time  before  decree,  (s) 

In  chancery,  the  submission  of  an  entire  case  to  a  jury  is 
contrary  to  the  practice,  and  should  be  discouraged,  even  when 
the  parties  desire  such  a  trial.  As  said  by  the  Supreme  Court 
of  Illinois,  in  the  case  of  Milk  vs.  Ifoore,  39  111.  p.  587, 
■ "  Such  practice  is  unknown  to  the  courts  of  equity,  both  in 
Great  Britain  and  in  this  country.  In  this  court,  no  question 
is  ever  submitted  to  a  jury,  except  on  a  feigned  issue,  which, 
when  the  common  law  and  equity  jurisdiction  is  vested  in 
difi'erent  persons,  is  sent  to  a  court  of  law  for  trial ;  and  when 
the  common  law  judge  and  the  chancellor  is  the  same  person, 
the  issue  is  sent  to  the  common  law  side  of  the  docket,  and  the 
verdict,  when  found,  is  certified  to  the  chancellor,  if  not  in 
fact,  it  is  so  in  theory.  In  forming  a  feigned  issue,  there  is  a 
formal  declaration  filed,  together  with  other  pleadings,  making 
the  issue  of  fact  to  be  tried."  {a) 

A  feigned  issue  may  be  ordered  to  determine  whether  a  deed 

(x)  Bouv.  L.  D.  516 ;  3  Black.  Com.  452 :  Bouv.  Inst.  Index,  h.  t. 

iy)  Milk  vs.  Moore,  39  111.  588. 

(z)  Russell  vs.  Payne,  45  111.  350. 

(a)  See  also  Pankey  vs.  Raurn,  51  111.  88. 


FEIGNED  ISSUES  — TRIAL  BY  JURIES.         189 

When  Ordered  —  Nature  of. 

was  intended  as  a  mortgage ;  (h)  or  was  made  to  defraud  credit- 
ors ;  (c)  or  whether  fraud  existed  in  the  consideration  of  a  mort- 
gage, (d)  It  is  also  proper  where  the  defendant  denies  the  exe- 
cution of  the  note  described  in  the  mortgage,  and  the  evidence 
is  contradictory ;  (e)  or  where  a  deed  is  sought  to  be  avoided 
for  insanity  of  the  grantor;  (y)  and,  also,  to  test  heirship,  (ff) 

A  feigned  issue  need  not  include  all  the  points  involved  in 
the  suit,  {h) 

Where  the  evidence  is  contradictory,  the  veracity  of  the  wit- 
nesses involved,  and  where  the  manner,  intelligence,  and  rela- 
tion of  witnesses  to  a  case,  must  have  their  proper  weight,  it  is 
highly  desirable  to  have  the  issue  tried  by  a  jury,  (i)  And  in  all 
proceedings  in  chancery,  involving  questions  of  insanity,  it  is 
the  duty  of  the  court  to  direct  that  an  issue  be  formed  and 
tried  by  a  jury,  (j) 

"  The  chancellor  is  the  sole  judge  of  the  evidence  and  its 
weight ;  and,  even  when  he  directs  an  issue  of  fact  to  be  tried 
by  a  jury,  to  inform  his  conscience,  he  may  adopt  the  verdict 
of  the  jury,  or  he  may  disregard  it,  and  render  a  decree  against 
their  finding,  or  he  may  grant  a  new  trial,  as  he  may  believe 
justice  demands.  In  our  courts  of  equity,  the  chancellor  being 
also  tlie  common  law  judge,  he  necessarily  hears  all  of  the  evi- 
dence upon  which  the  jury  acts,  and  if  satisfied  the  jury  have 
found  correctly,  it  would  be  his  duty  to  adopt  their  finding ; 
but,  if  dissatisfied,  it  would  be  equally  his  duty  to  disregard 
the  verdict,  and  proceed  with  the  cause,  in  such  manner  as  to 
do  complete  justice  between  the  parties."  (k) 

(6)  Williams  vs.  Bishop,  15  111.  108. 

(c)  Waddams  vs.  Humphrey,  22  111.  661. 

(d)  Milk  vs.  Moore,  39  111.  587. 

(e)  Russell  vs.  Payne,  45  111.  350. 
(/)  Myatt  vs.  WalTcer,  44  111.  485. 
{g)  McConnell  vs.  Smith,  27  111.  234. 
{Ji)  Pankey  vs.  Rhum-,  51  111.  88. 

\i)    Russell  vs.  Paine,  45  111.  350. 

(j)  Myatt  vs.  Walker,  44  111.485;  Pankey  vs.  Ranm,  51  111.  88;  Hahnvs. 
Huber,  83  111.  243. 

(k)  Milk  vs.  Moore,  39  111.  588;  WiUiams  vs.  Bishop,  15  111.  553;  Sibert 
vs.  McAvoy,  Id.  108;  Burt  vs.  Rynex,  48  iVlo.  309;  see  also  Austin  vs.  Bain- 
ter,  50  111.  308;  Meeker  vs.  Meeker,  75  111.  2G0;  Sharkey  vs.  Miller,  69  111. 
560;  Smith  vs.  Newton,  84  111.  14;  Titcomb  vs.  Vantyle,  84  111.  371. 


190         FEIGNED  ISSUES  — TKIAL  BY  JURIES. 

Order  Directing  au  Issue  for  a  Jury. 

The  court  may  award  a  new  trial,  not  only  to  satisfy  its  con- 
science, but  to  correct  any  errors  in  its  instructions  to  the  jury, 
or  any  other  errors  on  the  trial.  (Z)  And  a  court  of  chancery 
is  more  liberal  in  granting  new  trials  on  feigned  issues  than 
courts  at  law.  {^n) 

An  appeal  or  writ  of  error,  will  not  lie  to  set  aside  a  verdict 
on  feigned  issues,  until  the  chancery  case  is  disposed  of,  and  a 
joinder  in  error  will  be  of  no  avail,  (n) 

It  would  tend  to  promote  justice,  and  aid  the  court  in  its 
decree,  if  the  jury  were  instructed  to  find  on  each  issue  raised 
by  the  pleadings  and  proof,  instead  of  finding  a  general 
verdict,  {o) 

The  statute  of  Illinois  provides  that,  "  the  court  may  in  its 
discretion,  direct  an  issue  or  issues  to  be  tried  by  a  jury,  when- 
ever it  shall  be  judged  necessary  in  any  cause  in  equity,  pending 
therein.  In  all  other  causes  in  equity,  the  mode  of  trial  shall 
be  the  same  as  has  been  heretofore  practiced  in  courts  of 
chancery." 

Under  this  statute,  it  has  been  the  practice  to  make  an  issue 
without  using  the  common  law  forms  of  pleading.  But  the 
issue  in  chancery,  if  there  be  more  than  one,  should  be  distinct 
and  explicit,  presenting  in  each  a  single  question,  so  clearly 
that  it  could  not  but  be  understood  by  the  jury,  and  their 
verdict  should  be  responsive  to  each,  (p) 

No.  78.    Order  directing  an  issue  of  fact  to  he  tried  hy  a  jury » 

{Ca/ption  and  title  of  cause  as  in  No.  79,  post,  page  198.) 

This  cause  came  on  to  be  heard  upon  the  pleadings  filed  and 
the  proofs  taken  therein,  and  the  court  having  heai-d  tlie  argu- 
ments of  the  solicitors  for  the  respective  parties :  It  is  ordered 
that  the  following  issues  of  tact  be  made  and  tried  at  the 

[1)  Williams  vs.  Bishop,  15  111.  555  ;  Bigg  vs.  Wilton,!^  111.  15;  Milk  vs. 
Moore,  39  111.  588. 

(m)  Waddams  vs.  numplirey,  22  111.  661. 

{n)  Woodside  vs.  Woodside,  21  111.  207;  Brockett  vs.  Brockett,  3  How.  U. 
S.  R.  691. 

(o)    Von  Olahn  vs.  Von  Olahn,  46  111.  134. 

(p)  MUk  vs.  Moore,  39  111.  588. 


FEIGNED  ISSUES  — TKIAL  BY  JURIES.         191 

Drawing  and  Settling  Issue. 

term  of court,  to  be  held  in  the  county  of ,  or  as  soon 

thereafter  as  the  same  can  be  heard,  to  wit : 

1.  Was  the  deed  of  conveyance  mentioned  in  the  bill  of 
complaint,  to  wit,  etc.,  {Here  describe  the  deed)  obtained  by 
fraud  of  the  defendant  ? 

2.  Was,  etc.  {Ilei^e  state  any  other  fact  to  he  tried  hy  the 
jury^  and  so  on.) 

The  course  of  proceeding  upon  the  trial  of  an  issue  is  gene- 
rally the  same  as  that  adopted  in  ordinary  trials  at  law ;  except 
where  the  court  of  chancery  has  given  some  special  directions 
upon  the  subject.  ($') 

Drawing  ujp  a/)id  settling  a  feigned  issue. -^T^nd&v  the 
modern  practice  as  it  exists  in  Illinois,  a  resort  to  the  old 
practice  of  ordering  a  feigned  issue,  will  seldom  be  had.  If  it 
is  considered  desirable  to  form  a  feigned  issue,  instead  of  an 
issue  of  facts  under  the  statute,  forms  of  such  orders,  declara- 
tions and  pleas  may  be  found  in  2  Barbour's  Chancery  Prac- 
tice, pp.  483-486,  and  2  Chitty's  Pleadings,  p.  236. 

Upon  the  granting  of  an  order  for  a  feigned  issue,  a  draft  of 
the  pleadings  in  an  action  of  assumpsit  is  prepared  by  the 
complainant's  solicitor,  or  by  the  solicitor  of  whichever  party 
is  ordered  by  the  court  to  prepare  it.  In  the  declaration  the 
pretended  plaintiff  declares  that  he  laid  a  wager  of  a  certain 
amount,  with  the  defendant,  on  the  questions  in  dispute ;  and 
avers  that  the  fact  is  as  he  contended  it  was,  and  that  he  there- 
fore brings  his  suit  for  the  amount  of  the  wager.  The 
defendant  by  his  plea  admits  the  wager,  but  avers  the  contrary 
to  be  the  fact.  Whereupon  the  issue  is  joined  which  is  ordered 
to  be  tried,  {r) 

{q)  2  Dan.  Ch.  Pr.  742 ;  1  Barb.  Ch.  Pr.  451. 
(r)    1  Barb.  Ch.  Pr.  463 ;  2  Smith,  Ch.  80. 


CHAPTER  XIII. 

HEAEING. 

The  statute  of  Illinois  requires  the  clerks  of  the  courts  to 
keep  a  docket  of  all  the  causes  pending  m  their  respective 
courts,  in  which  the  people's  cases  are  to  be  first  set  down, 
after  which  shall  be  set  down  all  cases  in  law,  in  order,  accord- 
ing to  the  date  of  their  commencement,  and  lastly  the  suits  in 
chancery.  All  cases  shall  be  tried  or  otherwise  disposed  of  in 
the  order  they  are  placed  on  the  docket,  unless  the  court,  for 
good  and  sufficient  cause,  shall  otherwise  direct,  (a) 

Course  of  proceedings. — The  party  having  the  affirmative 
of  the  issues  has  the  opening  and  closing  of  the  case.  Where 
the  cause  is  heard  upon  the  pleadings  and  proofs,  the  com- 
plainant opens.  The  order  of  proceeding  is  generally  as 
follows :  The  complainant's  bill  is  first  read,  or  the  substance 
of  it  briefly  stated ;  the  defendant's  answer  is  then  read  or 
stated  in  like  manner ;  after  which  the  case  and  the  matters  in 
issue  are  stated,  with  the  points  of  equity  arising  therefrom ; 
and  then  the  testimony  and  such  parts  of  the  defendant's 
answer  as  are  considered  essential,  are  read  by  the  complain- 
ant's solicitor.  After  the  complainant's  evidence  has  been 
read,  the  defendant's  evidence  is  introduced ;  to  which  the 
complainant  may  offer  rebutting  testimony.  The  argument  is 
then  opened  by  the  solicitor  for  the  complainant.  The  defend- 
ant's solicitor  is  then  heard  in  answer ;  to  which  the  complain- 
ant's solicitor  may  reply,  and  concludes  the  argument. 

On  the  hearing  on  bill,  cross-bill,  answers  and  depositions, 
both  cases  being  heard  together,  and  both  parties  having 
material  allegations  to  sustain,  the  complainant  in  the  original 
bill  is  entitled  to  the  opening  and  the  close,  (b) 

{(i)  Rev.  Stat.  (1874)  776;  Rev.  Stat.  (1877)  735;  Clark  vs.  MarfieU,  77 
111.  258. 

[b]    Murphy  vs.  Stiiltz,  Saxton,  5G0. 


HEAEING.  193 


Course  of  Proceeding  —  Original  and  Cross-Bill  Heard  Together. 

In  a  bill  filed  to  enjoin  an  action  of  ejectment  and  for 
specific  performance,  the  complainant's  counsel  is  entitled  to 
the  opening  and  closing,  (c) 

When  there  are  two  defendants,  who  set  up  adverse  claims, 
the  course  of  practice  is  for  the  complainant  to  open  ;  for  the 
defendant  who  sets  up  a  claim  against  the  other  then  to  go  on, 
and  for  the  other  defendant  to  answer ;  and  there  is  no  reply 
between  the  defendants,  {d)  unless  specially  directed  by  the 
court,  {e) 

Upon  a  plea  or  demurrer  the  defendant  holds  the  afiirmative, 
and  opens  the  argument ;  and  upon  appeal,  the  opening  argu- 
ment of  the  appellant's  counsel  is  first  heard.  Where  the  cause 
is  heard  upon  exceptions,  to  an  answer,  the  complainant 
begins.  If  upon  exceptions  to  a  master's  report,  the  party 
excepting  opens  the  argument.  But  where  both  parties  except, 
the  complainant's  counsel  is  first  heard  upon  his  exceptions, 
and  then  the  defendant's  counsel  answers  him,  and  opens  the 
argument  upon  his  own  exceptions.  {/) 

Hearing  case  out  of  its  order. — Although  it  is  a  general 
rule  that  causes  come  on  to  be  heard,  according  as  they  stand 
upon  the  docket,  yet  they  are  sometimes  heard  out  of  their 
ordinary  course,  on  sufficient  cause  being  made  to  appeal,  {g) 

Original  and  cross-bill  heard  together. — The  original  bill  and 
cross-bill  should  be  heard  together.  (A)  The  court  will  also 
order  depositions  in  a  cross-suit  to  be  read,  on  the  account 
directed  in  the  original  suit,  though  the  cross-bill  is  dis- 
missed, {i)  And  a  cross-bill  for  discovery,  taken  ^r6>  confessor 
will  be  ordered,  on  motion,  to  be  read  on  the  hearing  of  the 
original  cause,  {j) 

(c)  JDuman  vs.  Pepper,  43  Geo.  361. 

(d)  Walton  vs.  Van  Mater,  Halst.  Dig.  175. 

(e)  1  Barb.  Cli.  Pr.  317. 
(/)  1  Barb.  Ch.  Pr.  317,  318. 

{g)    Gregg  vs.  Brower,  57  111.  525;  Clark  vs.  Marfield,  77  111.  258. 
(h)   Beauchamp  vs.  Putnam,  34  111.  378. 
(i)    Lubiere  vs.  Oenou,  2  Ves.  579. 
{j)    Corey  vs.  Gertaken,  2  Mad.  43 ;  1  Barb.  Ch.  Pr.  320. 
13 


194  HEARING. 


Effect  of  Former  Orders  on  the  Hearing. 


In  cross-suits,  and  also  in  other  suits,  where  there  are  two 
causes  between  the  same  parties,  involving  the  same  points  in 
dispute,  and  where  it  is  material  that  both  causes  should  be 
heard  together,  if  both  are  set  down  for  hearing,  but  stand  at  a 
distance  fi-om  each  other,  the  court  will  permit  the  cause  which 
Btands  last,  to  be  advanced,  or  that  which  stands  first  to  be 
adjourned,  so  that  both  may  come  on  at  the  same  time ;  and 
likewise,  if  it  is  necessary,  the  depositions  taken  in  one  cause 
to  be  read  in  the  other  —  an  order  for  that  purpose  having  been 
previously  obtained.  (Jc) 

It  is  in-  the  discretion  of  the  court  to  postpone  the  hearing 
on  the  original  bill,  until  the  cross-bill  is  ready  for  hearing, 
that  both  may  be  heard  together ;  but  this  will  not  be  done 
where  there  is  unnecessary  or  affected  delay  in  preparing  the 
cross-bill,  (f) 

Effect  of  former  orders  on  the  hearing. —  On  a  final  hearing 
all  previously  rendered  decretal  orders  are  before  the  court, 
and  may  be  altered,  modified,  or  vacated,  as  justice  may 
require,  (m) 

Qc)  Ncvil  vs.  Johnson,  2  Vern.  447;  Wilford  vs.  Beaseley,  3  Atk.  501,508 ; 
Prac.  Reg.  172 ;  1  Barb.  Cli.  Pr.  320. 

(Q  McConnics  vs.  Moseley,  4  Call,  360 ;  Beauchamp  vs.  Putnam,  34  IlL 
378. 

(m)  Gibson  vs.  Meese,  50  111.  383 


CHAPTER  XIY. 


DECREES  AND  DECRETAL  ORDERS. 

Section  1.    Nattjbe,  Uses  and  Kinds  of  Deckehb. 
2.    Forms  op  Decrees. 


SECTION"  I. 

NATURE,  USES  AND  KINDS  OF  DECREES. 

A  decree  is  the  judgment  or  sentence  of  a  court  of  equity, 
pronounced  after  the  hearing  or  submission  of  the  cause.  It 
may  be  interlocutory  or  final.  The  former  is  properly  an  order 
or  decree  pronounced  for  the  purpose  of  ascertaining  matters  of 
fact  or  law,  preparatory  to  a  final  decree.  It  very  seldom  hap- 
pens that  the  first  decree  can  be  final  or  conclude  the  cause. 
The  latter  settles  the  matter  in  dispute,  and  the  final  decree 
has  the  same  efiect  as  a  judgment  at  law.  {a) 

It  is  a  settled  rule,  that  a  decree  must  conform  to  the  allega- 
tions in  the  pleadings  as  well  as  to  the  proof  in  the  cause ;  (b) 
and  a  complainant  cannot  obtain  a  decree  for  more  than  he  has 
asked  in  his  bill,  (c) 

InterloGutory  degree. — Judgment  upon  a  demurrer  in  favor 
of  the  complainant,  or  against  a  plea,  is  not  final  but  interlocu- 

(a)    2  Mad.  Ch.  462  ;  Barton's  Suit  in  Eq.  147. 

(6)  Woodworth  vs.  Huntoon,  40  111.  132;  Means  vs.  Means,  ^  111.50; 
Hall  vs.  Tovme,  45  111.  493 ;  Crocket  vs.  Lee,  7  Wheat.  522 ;  Ringgold  vs.  Ring- 
gold, 1  Har.  &  G.  11 ;  Pigg  vs.  Corder,  12  Leigh,  69  ;  Corneal  vs.  Banks,  10 
Wheat.  181 ;  Stuart  vs.  M.  &  T.  Bank,  18  Johns.  496 ;  Cloud  vs.  Whitman, 
2  Har.  401 ;  Smith  vs.  Smith,  1  Ired.  Ch.  88 ;  Bozman  vs.  Droughan,  3  Stew. 
243 ;  Langdonxs.  Roane,  6  Ala.  518 ;  Morgan  vs.  Crabb,  3  Porter,  470 ;  Maury 
VB  Mason,  8  Porter,  211 ;  Dickinson  vs.  Morgan,  8  Dana,  130  ;  Rougher  vs. 
Miller,  Wright,  328 ;  Handly  vs.  Toung,  4  Bibb,  376 ;  Del.  &  H.  Canal  Co. 
VB.  Penn.  Canal  Co.  21  Penn.  131. 

(c)    Simons  vs.  Guthrie,  9  Cranch,  19  ;  Hall  vs.  Towne,  45  111.  493. 


196     DECKEES  AND  DECRETAL  ORDERS. 

Interlocutory  Decree  —  Final  Decree. 

tory  ;  [d)  for  a  decree  is  not  final  nnless  all  the  material  facts 
are  ascertained  at  the  time ;  and  a  decree  referring  the  cause 
to  a  master  to  ascertain  such  facts  is  interlocutory  only  ;  [e)  in 
like  manner,  where  tlie  further  action  of  the  court  is  necessary 
to  give  completely  the  relief  contemplated  by  the  court,  there 
the  decree  upon  which  the  question  arises,  is  to  be  regarded 
not  as  final  but  interlocutory,  (f) 

A  decree  deciding  the  rights  of  the  parties  as  to  the  matter 
in  controversy,  and  awarding  costs,  is  still  but  interlocutory,  if 
it  be  referred  to  commissioners  to  execute  it,  and  the  court  has 
afterward  to  determine  matters  on  the  report ;  (g)  and  a  decree 
ordei'ing  an  act  to  be  done  before  the  decree  can  be  effectual,  is 
interlocutory.  (A) 

Where  money  is  directed  to  be  paid  into  court,  or  property 
to  be  delivered  to  a  receiver,  or  to  a  new  trustee,  or  where  any- 
thing is  to  be  done,  which  may  be  the  subject  of  exception  or 
appeal,  the  decree  is  not  final,  but  interlocutory  only  ;  (/)  and 
an  order  directing  an  issue  at  law,  is  interlocutory  merely,  and 
may  be  set  aside  at  a  subsequent  term,  (j) 

A  decree,  in  which  the  party  in  ^yhose  favor  it  is  made, 
cannot  obtain  the  benefit  thereof,  without  further  hearing 
before  the  court,  is  interlocutory.  (Jc) 

Ordering  bonds  in  dispute  to  be  brought  into  court  to  await 
its  further  order,  and  that  the  several  claimants  intei-plead,  is 
an  interlocutory,  not  a  final  decree.  (Z) 

Final  decree. — A  decree  which  finally  disposes  of  the  subject 
of  litigation,  so  far  as  the  court  is  concerned,  reserving  no  fur- 
ther questions  or  directions  for  the  future  judgment  of  the 

{d)  Warner  vs.  Tomlinson,  1  Root,  201 ;  Gray  vs.  Hays,  7  Humph.  588  • 
Knapp  vs.  Marshall,  26  111.  63. 

(e)  Jaques  vs.  M.  E.  Church,  17  Jolius.  548. 

(/)  CocJce  vs.  Gilpin,  1  Rob.  Va.  20. 

i^g)  Maclcey  vs.  Bell,  2  Munf .  523  ;  see  also  Price  vs.  Nesbit,  1  Hill,  Cli.  445 

iji)  nays  vs.  Mays,  1.  J.  J.  Marsh.  497. 

(i)  Bellamy  vs.  Bellamy,  4  Florida,  242. 

\jD  Dabhs  vs.  Dahhs,  27  Ala.  646. 

ijc)  Johnson  vs.  Everett,  9  Paige,  Ch.  R.  636 

(0  Thomas  vs.  County  of  Morgan,  39  111.  497. 


DECREES  AND  DECRETAL  ORDERS.     197 


Final  Decrees. 


court,  is  a  final  decree,  thougli  some  furtlier  proceedings  are  to 
be  had  before  a  master,  exceptions  to  whose  report  may  bring 
the  matter  again  before  tlie  court,  [m]  such  as  the  appointment 
of  a  commissioner  to  sell  a  part  of  the  subject  of  controversy, 
and  account  for,  and  pay  the  proceeds  to  the  parties,  with 
liberty  to  them  to  apply  to  the  court  to  add  other,  or  substitute 
new  commissioners,  or  for  a  partition  of  the  subject  directed  to 
be  sold  in  kind  ;  {n)  or  a  reference  to  a  master  to  ascertain  the 
amount  of  the  debt,  (o)  A  decree  of  foreclosure  and  sale  of  the 
premises,  in  a  bill  to  foreclose  a  mortgage,  is  a  final  decree. 
And  a  sale  under  the  decree,  after  the  death  of  a  defendant, 
without  a  revival  of  the  suit,  is  not  an  error  for  which  the 
decree  will  be  reversed  on  a  bill  of  review,  {p) 

A  decree  that  the  defendants  should  assign  a  certificate  of 
lands  to  the  complainant,  provided  he  should,  before  a  given 
day,  and  after  the  tender  of  the  assignment,  pay  a  certain  sum 
of  money  to  them,  is  a  final  decree,  {q) 

Where  a  claim  in  the  original  bill  becomes  unimportant 
before  decree,  and  the  decree  does  not  pass  upon  it,  but  dis- 
poses of  all  other  matters  in  the  suit,  the  decree  is  final ;  (r) 
and  a  decree  appointing  a  trustee  to  sue  under  a  deed  of  trust, 
is  final  as  to  this  matter,  and  binding  alike  on  strangers  and 
on  parties  to  the  decree,  (s) 

If  a  suit  is  dismissed  by  the  court  on  a  final  hearing,  it  is  a 
bar  to  another  suit ;  but  not  if  the  ground  of  dismissal  is  that 
a  court  of  law  is  the  proper  forum,  {t) 

(m)  Mills  vs.  Hoag,  7  Paige,  Ch.  E.  18 ;  Vanmeter  vs.  Vanmeter,  3  Gratt. 
Va.  148 ;  Dickenson  vs.  Codwise,  11  Paige,  Ch.  R.  189 ;  see  Bates  vs.  Del- 
avan,  5  Paige,  Cli.  R.  299 ;  Tennent  vs.  Patton,  6  Leigh,  196 ;  Wetherford 
vs.  James,  2  Ala.  170 ;  Cook  vs.  Bay,  4  How.  Miss.  485  ;  Talbot  vs.  Todd,  7 
J.  J.  Marsh.  456;  Graham  vs.  Elmore,  Harring.  Ch.  265. 

iji)  Harvey  vs.  Branson,  1  Leigh,  108 ;  Larue  vs.  Larue,  2  Little,  261 ; 
Field  vs.  Ross,  1  Monroe,  137. 

(o)    Johnson  vs.  Everett,  9  Paige,  Cli.  636. 

{p)  Wfiiting  vs.  Bank  of  U.  8.  13  Pet.  6  ;  see  Travis  vs.  Waters,  1  Johns. 
Ch.  85  ;  Jonit  vs.  Oaither,  6  Monr.  251. 

iq)    Turner  vs.  Crehill,  1  Ham.  368. 

(r)    Btiffvs.  Starke,  3  Gratt.  Va.  134.    ' 

(s)    Griffin  vs.  Doe,  12  Ala.  783. 

(t)    Swift  vs.  Allen,  55  111.  303  ;  Ixnapp  vs.  Marshall,  26  111.  63. 


198  DECREES  AND   DECRETAL  ORDERS. 

Forms  of  Decrees  —  Caption  with  Title  —  Recitals. 

SECTION  II. 
FOKMS    OF    DECKEES. 

Constituent  jparts. — Decrees  in  general  consist  of  three  parts : 
f/rst^  the  caption  and  title ;  second.,  the  recitals ;  and  third.,  the 
ordering  part ;  to  which  may  sometimes  be  added  the  fourth., 
the  declaratory  part,  which,  when  made  use  of,  generally  pre- 
cedes the  ordering  part,  {u) 

The  caption  and  title. — The  decree  commences  with  the 
name  of  the  court,  and  the  place  where  it  is  held,  the  term  at 
which  it  is  pronounced,  and  the  title  of  the  cause. 

iTo.  79.     Caption  of  a  decree  or  order,  loith  title  of  cause. 

At  a  Term  of  the Court,  held  in  and  for  the 

County  of ,  in  the  State  of ,  at  the  court 

house  in ,  on  the dav  of ,  in  the  year 

18—. 

Present :  The  Honorable ,  Judge,  etc. 

A.  B.  ) 

vs.     y  In  Chancery. 
CD.) 
This  cause,  etc. 

The  recitals. — The  practice  in  England  at  one  time,  was  to 
recite  at  length  the  pleadings  and  evidence  in  the  cause ;  but 
this  practice,  in  consequence  of  its  expense  and  inconvenience, 
has  been  abolished,  and  the  decree  now  merely  recites  the  sub- 
stance of  the  pleadings,  and  the  facts  on  which  the  court  founds 
its  judgment.  In  this  country,  the  decree  usually  contains  a 
mere  reference  to  the  antecedent  pleadings,  without  embodying 
them,  or  any  special  facts  upon  which  it  is  rendered,  {v)  In 
Illinois,  however,  the  evidence  is  frequently  preserved  in  the 
decree,  {w) 

(u)  Barton's  Suit  in  Eq.  150 ;  1  Barb.  Ch.  Pr.  337  ;  2  Dan.  Ch.  Pr.  663. 

{v)  Barton's  Suit  in  Eq.  150 ;  see  Quarrier  vs.  Carter,  4  Hen.  &  Munf. 
242. 

(w)  Cooley  vs.  Scarlett,  38  III.  316  ,  Walker  vs.  Carey,  53  111.  470. 


DECEEES  AND   DECRETAL  ORDERS.  l'J9 

Forms  of  Decrees  —  Recital  —  Ordering  Part. 

"Wliere  a  decree  in  chancer}^  recites  that  the  case  was  heard 
upon  proofs,  and  then  finds  the  facts  charged  in  the  bill  to 
be  true,  it  will  be  inferred  the  facts  were  found  upon  the  testi- 
mony. Such  a  decree  will  be  sustained,  though  it  does  not 
purport  to  set  out  the  testimony,  and  it  is  not  otherwise  pre- 
Berved  in  the  record,  {x) 

No.  80.     Recital  of  a  decree  or  order. 

This  cause  having  come  on  to  be  heard  upon  the  bill  of 
complaint  herein,  the  answer  thereto,  the  replication  of  the 
complainant  to  such  answer,  and  the  pi-oofs  taken  in  said 
cause,  and  having  been  argued  by  counsel  for  the  respective 
parties,  and  the  court  having  duly  considered  the  same,  it  is 
ordered,  etc. 

The  86th  rule  for  practice  in  the  United  States  courts  of 
equity  provides  that,  "  in  drawing  up  decrees  and  orders, 
neither  the  bill,  nor  answer,  nor  other  pleadings,  nor  any  part 
thereof,  nor  the  report  of  any  master,  nor  any  other  prior  pro- 
ceedings, shall  be  recited  or  stated  in  the  decree  or  order ;  but 
the  decree  and  order  shall  begin,  in  substance,  as  follows: 

This  cause  came  on  to  be  heard  (or  to  be  further  heard,  as 
the  case  may  be)  at  this  term,  and  was  argued  by  counsel,  and 
thereupon,  upon  consideration  thereof,  it  was  ordered,  ad- 
judged and  decreed  as  follows,  viz.  {Here  insert  the  decree 
or  order.') " 

The  orde7nng  part. — After  the  recitals  comes  the  ordering 
or  mandatory  part  of  the  decree,  containing  the  specific  direc- 
tions of  the  court  upon  the  matter  before  it,  which,  it  is 
obvious,  must  depend  upon  the  nature  of  the  particular  case, 
which  is  its  subject,  {y) 

Where  the  decree  is  merely  interlocutory,  and  directs  an 
issue  or  an  inquiry  to  be  made,  or  account  to  be  taken  before 
a  master,  it  usually  contains  a  reservation  of  the  further  mat- 
ters to  be  decided,  and  generally,  also,  the  costs  of  the  suit, 
till  after  the  event  of  the  issue  or  reference  shall  be  known.  {£) 

(x)  Minick  vs.  Maiick,  54  111.  281;  Jones  vs.  Necly,  72  111,  449;  Wright 
vs.  Troutman,  81  111.  3T4. 

(/;)    Barton's  Suit  in  Eq.  lo'' 
[z]    1  Barb.  Ch.  Pr.  338. 


^00     DECREES  AND  DECRETAL  ORDERS. 

Forms  of  Decrees  —  Declaratory  Part,  etc. 

Declaratory  part. — Where  the  suit  seeks  a  declaration  of 
the  rights  of  the  parties,  the  ordering  part  of  the  decree 
should  he  prefaced  bj  such  declaration.  This  is  not,  however, 
absolutely  necessary,  and  its  omission  will  not  invalidate  the 
decree,  {a)  Sometimes  the  court  directs  an  insertion  in  the 
decree  of  the  reasons  for  making  the  declaration,  and  of  the 
grounds  upon  which  it  proceeds  in  making  it.  (J)  This,  how- 
ever, is  not  often  done,  though  the  utility  of  the  practice  has 
been  frequently  recognized,  (c) 

Decree  hy  consent. — When  a  decree  is  rendered  hy  consent, 
it  should  be  so  stated  in  the  decree,  {d)  Sometimes  it  is 
stated  to  be  by  consent  generally ;  sometimes  by  consent  of 
counsel,  and  sometimes  by  the  consent  of  the  parties,  {e) 

A  decree  or  order  made  by  consent  cannot  be  set  aside  by 
rehearing,  writ  of  error,  or  an  appeal,  or  a  bill  of  review,  (/") 
without  showing  by  the  bill  of  review  fraud  or  mistake,  {g) 
And  the  consent  may  be  proved  aliunde.  (A) 

Nunc  pro  tunc  clause. — Decrees  will  sometimes  be  entered 
nunc  pro  tunc,  {i) 

When  they  are  so  entered  the  following  recital  and  direction 
may  be  inserted :  "  And  it  appearing  to  the  satisfaction  of  this 
court  that  the  complainant  A.  B.  (or  the  defendant  C.  D.)  has 

(a)    Jenour  vs.  Jenour,  10  Ves.  568 ;  1  Barb.  Ch.  Pr.  839. 

(6)  Gorden  vs.  Gorden,  3  Swanst.  478 ;  Maynard  vs.  Mosely,  Id.  653 ; 
Onions  vs.  Tyrer,  1  P.  Wms.  343. 

(c)  Bax  vs.  Wliiibread,  16  Ves.  34;  Gorden  vs.  Gorden,  3  Swanst.  478; 
1  Barb.  Ch.  Pr.  339. 

{d)  Barton's  Suit  in  Eq.  150,  151  ;  1  Barb.  Ch.  Pr.  339 ;  Seaton  on  De- 
crees, 374. 

(e)     Seaton  on  Decrees,  374. 

(/)  Id. ;  Bradish  vs.  Gee,  Ambl.  229  ;  Harrison  vs.  Rumsey,  2  Ves.  488 ; 
Toder  vs.  Sansam,  7  Bro.  P,  C.  244 ;  Norcott  vs.  Norcott,  7  Vin.  398 ;  Wiiid- 
Jiam  vs.  Windham,  Freem.  127. 

{g)    Pragler  vs.  Crow,  40  111.  415. 

ih)    Armstrong  vs.  Cooper,  11  111.  540. 

(i)  Stevens  vs.  Coffren,  S9  111.  148;  McCormick  vs.  Wheeler,  ^^  111.  115* 
McLain  vs.  Van  Winkle,  40  111.  407  ;  Frame  vs.  Frame,  16  111.  155  ;  Brig- 
nardello  vs.  Gray,  1  Wall.  U.  S.  R.  630 


DECREES  AND   DECRETAL  ORDERS.  201 

Entering  Decree  nunc  pro  tunc  —  Drawing  Decrees. 

departed  this  life  since  the  argument  of  this  cause,  it  is  further 
ordered,  that  this  decree  be  entered  mtnc  jp7'o  tunc  as  of  the 
day  of 18 — ,  the  day  when  this  cause  was  argued."  {j) 

When  one  of  the  defendants  dies  after  the  argument  of  a 
cause,  and  before  it  is  decided,  it  is  customary  to  enter  the 
decree  mine  jpro  tunc,  so  that  it  may  have  relation  back  as  of 
the  day  of  the  hnal  hearing.  {Ic) 

So  where  the  complainant  died  after  the  entry  of  an  appeal 
from  the  decree  of  a  vice  chancellor,  and  after  the  cause  was 
ready  for  a  hearing  upon  the  appeal,  but  the  fact  of  his  death 
being  unknown  to  the  counsel,  the  cause  was  afterward  heard 
and  decided  by  the  chancellor,  upon  the  appeal ;  it  was  held 
that  the  decree  upon  the  appeal  might  be  entered  nunc  jpro 
tunc  as  of  a  day  previous  to  the  death  of  the  complainant  and 
after  the  entering  of  the  appeal.  (^ 

So  where  the  cestui  que  trust  of  the  complainant  had  died 
after  argument  and  before  the  decision  of  the  cause  by  which 
the  suit  was  determined,  the  court  ordered  the  decree  to  be 
entered  nunc  pro  tunc  as  of  the  time  of  the  argument,  {m) 

And  decrees  have  been  entered  nunc  jpro  tunc  after  a  very 
long  interval  has  elapsed  from  the  time  of  pronouncing  the 
decree ;  and  even  where  the  original  decree  has  been  lost,  tho 
court  has  permitted  it  to  be  entered  nunc  pro  tunc  from  the 
ofiQce  copy,  after  the  lapse  of  twentj^-three  years,  {n) 

Drawing  of  decree. — The  decree  should  be  written  out  by 
the  solicitor  and  approved  by  the  court,  {o)  But  the  judgo 
rendering  a  decree  is  not  required  to  sign  his  name  to  it.  The 
enti'y  of  the  decree  on  the  record  by  the  clei'k  gives  it 
validity,  {p) 

(j)    1  Barb.  Ch.  Pr.  340. 

(k)    Cam.phell  vs.  Mcsier,  4  Johns.  Cb.  334. 
{I)    Vi'oom  vs.  Ditmas,  5  Paige,  Cb.  528. 
(m)  Wood  vs.  Keyes,  6  Paige,  Cb.  E.  478. 

{n)  Lawrence  vs.  BicJunond,  1  Jac.  &  W.  241 ;  Donne  vs.  Lewis,  11  Ves. 
601  ;  Jcsson  vs.  Brewer,  1  Dick.  371  ;  1  Barb.  Cb.  Pr.  341,  342. 

{o)   Stevens  vs.  Goffeen,  39  111.  148 ;  Schneider  vs.  Seibert,  50  111.  ■28.'j. 
(p)  Dunning  vs.  Dunning,  37  111.  306s 


202  DECKEES  AND   DECRETAL  ORDERS. 

General  Forms  of  Orders  and  Decrees. 


No.  81.     General  form  of  an  order. 

{Caption^  with  title  of  the  cause,  as  in  No.  79,  ante,  _^.  198.) 

This  cause  having  come  on  to  be  heard  upon  the  motion  of 
the  complainant,  {or  defendant)  for,  etc.  {Here  insert  th-e 
nature  of  the  motion,  and  let  the  recital  agree  with  the  facts), 
the  bill  of  complaint  herein,  the  answer  of  the  defendant 
thereto,  the  replication  of  the  complainant  to  such  answer, 
and  the  proofs  taken  in  the  cause,  and  having  been  argued  by 
counsel  for  the  respective  parties ; 

]^ow,  therefore,  on  consideration  thereof,  it  is  ordered, 
adjudged  and  decreed,  and  the  court  doth  hereby  order, 
adjudge  and  decree  as  follows,  viz,  :*  {Here  insert  the  order.) 

No.  8'2.     General  form  of  a  decree. 

{Caption,  with  title  of  the  cause  as  in  No.  79,  &nie,page  198.) 
This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answer  of  the  defendant  thereto,  the  replica- 
tion of  the  complainant  to  such  answer,  and  the  proofs,  oral, 
documentary  and  written,  taken  and  tiled  in  said  cause,  and 
having  been  argued  by  counsel  for  the  respective  parties ; 

Now,  therefore,  on  consideration  thereof,  it  is  ordered,  ad- 
judged and  decreed,  and  the  court  doth  hereby  order,  adjudge 
and  decree,  as  follows,  viz. :    {Here  insert  the  decree.) 

No.  83.     General  form  of  a  decree  or  order,  {q) 

{Caption,  with  title  of  cause,  as  in  No.  79,  ante,  page  198.) 

This  cause  came  on  to  be  heard,  (or  to  be  further  heard,  as 
the  case  may  he,)  at  this  term  of  the  said  court,  and  was  argued 
by  counsel ;  and  thereupon,  upon  consideration  thereof,  it  was 
ordered,  adjudged  and  decreed,  as  follows,  viz. :  {Here  insert 
tne  decree  or  order.) 


(q)  Kule  86  of  U.  S.  Eq.  Rules,  ante,  page  199. 


CHAPTER  XY. 

SUPPLEMENTAL    BILL. 

Btection  1.  Nature  of,  and  when  proper. 

3.  When  to  be  Filed. 

3.  Parties  to. 

4.  Form  of. 

5.  Petition  for  Leave  to  File. 

6.  Process. 

7.  Defenses  to. 

8.  Replication  and  Evidence. 

9.  Hearing. 

SECTION  I. 

NATURE    OF,    AND    WHEN    PKOPEK. 

A  supplemental  bill  is  used  for  the  purpose  of  supplying 
some  irregularity  or  defect  discovered  in  the  frame  of  the 
original  bill,  or  in  some  proceedings  upon  it ;  or  some  defect  in 
the  suit  arising  from  events  happening  after  an  issue  had  been 
reached  in  the  proceedings,  and  by  which  persons,  not  parties 
to  the  suit,  have  acquired  an  interest  in  it.  {a)  If,  however, 
the  original  bill  shows  no  ground  for  relief,  the  defect  cannot 
be  cured  by  a  supplemental  bill,  setting  up  matters  that  have 
arisen  since  the  commencement  of  the  suit,  (b) 

Matters  which  occurred  prior  to  the  filing  of  the  original 
bill,  and  not  stated  therein,  should  be  brought  into  the  suit  by 
amendment,  but  matters  arising  subsequent  to  the  filing  of 
the  original  bill,  should  be  introduced  by  a  supplemental  bill,  {c) 

(a)  Barton's  Suit  in  Eq.  128  ;  Story's  Eq.  PI.  §  332 ;  Mont.  Eq.  Pl.  316  ; 
Hinde's  Pr.  42,  45. 

(6)  FaTis  vs.  Roberts,  54  111.  192 ;  Candler  vs.  Pettit.  1  Paige,  Ch.  R.  168 ; 
Broton  vs.  Higdon,  1  Atk.  291 ;  Edgar  vs.  Clevenger,  2  Green,  Ch.  R.  258  ; 
Story's  Eq.  PI.  ^  339. 

(c)  Burlce  vs.  Smith,  15  111.  158  ;  Stafford  vs.  Howlett,  1  Paige,  Cli.  R.  200 ; 
Fulton  Bank  vs.  N.  Y.  <&  S.  Canal  Co.  4  Paige,  Ch.  R.  127  ;  Walker  vs.  Gil- 
bert, 7  S.  &  M.  456  ;  Wrap  vs.  HutcMnson,  2  Mylne  &  Keene,  235  ;  Crompton 
vs.  Wombwell,  4  Sim.  628. 


204  SUPPLEMENTAL   BILL. 

Nature  of,  and  when  Proper. 

And  such  bill  may  not  only  be  for  the  purpose  of  putting  in 
issue  new  matter,  which  may  vary  the  relief  prayed  in  the 
original  bill,  but  also  for  the  purpose  of  putting  in  issue  matter, 
which  may  prove  the  complainant's  right  to  relief,  originally 
prayed,  {d) 

In  order  to  file  a  supplemental  bill,  it  must  be  shown  that 
the  matter  relied  on  as  supplemental  has  arisen  since  tfie  com- 
mencement of  the  original  suit,  or  that  the  facts  have  first 
become  known  to  the  complainant  in  such  a  way  that  he 
could  make  use  of  them  since  the  cause  passed  the  stage  in 
which  he  might  have  leave  to  amend,  or  that  he  had  been 
prevented  by  inadvertence,  mistake,  or  some  other  cause  satis- 
factorily shown,  from  availing  himself  of  the  matter  proposed 
to  be  shown  at  an  earlier  stage  of  the  case ;  and  the  supple- 
ment bill  must  be  confined  to  such  matter,  and  must  be 
verified  by  afiidavit,  or  other  satisfactory  proof,  {e) 

The  court  will  also  permit  other  matters  to  be  introduced 
into  the  supplemental  bill  which  might  have  been  incorporated 
in  the  original,  by  way  of  amendment ;  and  this  is  especially 
proper  where  the  matter  which  occurred  prior  is  necessary  to 
the  proper  elucidation  of  that  which  occurred  subsequently  to 
the  filing  of  the  original  bill ;  (/")  and  when  properly  before  the 
court  it  is  an  addition  to  the  original  bill,  and  becomes  a  part  of 
it,  so  that  the  whole  is  to  be  taken  as  one  supplemental  bill,  {g) 
constituting  but  one  cause,  requiring  but  one  replication.  (A) 

A  supplemental  bill  may  also  be  proper  in  order  to  bring 
before  the  court  new  parties.  In  such  case  the  original  de- 
fendants need  not  be  made  parties,  unless  they  have  an  interest 

(d)  Story's  Eq.  PI.  §  332  ;  Grompton  vs.  Womiwell,  4  Sim.  638. 

(e)  Pedrick  vs.  WIdte,  1  Met.  76 ;  Bowie  vs.  Minter,  2  Ala.  406 ;  Story's 
Eq.  PI.  §  338;  Mitf.  Eq.  PI.  55,  61 ;  Hinde's  Pr.  43,43;  Veazievs.  Williams, 
3  Story,  R.  54  ;  see  also  Hasbi'ook  vs.  Shuster,  4  Barb.  285 ;  Collins  vs.  Laven- 
lerg,  19  Ala.  682  ;  Mix  vs.  Beach,  46  111.  311 ;  Choteau  vs.  Bice,  1  Minn.  106; 
Oopen  vs.  Flesher,  1  Bond,  440. 

(/)  Graves  vs.  Miles,  Harring.  Ch.  332. 

(g)  Gillett  vs.  Hall,  13  Conn.  436  ;  Potter  vs.  Barclay,  15  Ala.  439  ;  Cu7h- 
ningJiam  vs.  Bogers,  14  Ala.  147 ;  Harrington,  vs.  Slade,  23  Barb.  N.  Y.  161 ; 
Catton  vs.  Carlisele,  5  Mad.  427 ;  Orecnwood  vs.  Atkinson,  4  Sim.  628. 

(A)    Id.  ib. ;  Choteau  vs.  Bice,  1  Minn.  106. 


SUPPLEMENTAL  BILL.  205 


When  to  be  Filed  —  Parties  to. 


in  the  supplemental  matter,  or  may  be  affected  by  the  interest 
of  such  new  parties,  (i) 

A  stranger  to  a  suit  in  equity  claiming  an  interest  therein, 
cannot  interfere  with  the  proceedings  without  filing  a  supple- 
mental bill  to  make  himself  a  party,  {j)  And  when  a  supple- 
mental bill  is  filed,  bringing  new  parties  into  court,  it  is,  as  to 
them,  a  new  suit,  and  is  to  be  considered  as  being  commenced 
when  the  supplemental  bill  is  filed.  {7v) 

The  filing  of  a  supplemental  bill,  after  a  pro  confesso  order, 
vacates  the  order,  and  the  defendant  may  put  in  an  answer.  (Z) 

SECTION  II. 
WHEN    TO    BE    FILED. 

A  supplemental  bill  for  the  purpose  of  adding  new  matter, 
or  for  the  purpose  of  bringing  new  parties  before  the  court, 
may  sometimes  be  filed  after  as  well  as  before  the  decree,  (m) 
Thus,  for  the  purpose  of  giving  directions  which  were  not 
prayed  for  in  the  original  bill,  but  which  the  result  of  the  pro- 
ceedings under  the  decree  has  rendered  proper,  {n)  But  it 
cannot  be  filed  after  a  deci'ee  dismissing  the  bill,  (o) 

SECTION  III. 
PARTIES    TO    SUPPLEMENTAL   BILL. 

When  the  bill  is  filed  for  any  new  matters  arising  since  the 
filing  of  the  original  bill,  the  defendants  to  the  original  bill 

(i)  Bignall  vs.  Atlcins,  6  Mad.  369 ;  Ensworth  vs.  Lambert,  4  Johns.  Ch. 
E.  605 ;  Jones  vs.  Jones,  3  Atk.  217  :  Holdsworth  vs.  Holdsworth,  3  Dick.  799 ; 
North  Am.  Coal  Co.  vs.  Dyctt,  2  Edw.  Ch.  115. 

(j)  Watt  vs.  Crawford,  11  Paige,  Ch.  E.  470;  Livingston  vs.  Freeland, 
3  Barb.  Ch.  E.  510. 

(k)  Morgan  vs.  Morgan,  10  Geo.  297. 

{I)    Gibson  vs.  Beas,  50  111.  383. 

(m)  2  Barb.  Ch.  Pr.  62 ;  Woodward  vs.  Woodward,  1  Dick.  83 ;  Boeve  vs. 
Bkipwith,  1  Eq.  Ca.  Ab.  80 ;  2  Ch.  E.  143 ;  3  Dan.  Ch.  Pr.  156. 

(w)   Dormer  vs.  Fortescue,  3  Atk.  124. 

(o)    Burke  vs  Stnith,  15  111.  158. 


206  SUPPLEMENTAL  BILL. 

Parties  to. 

ought  to  be  made  parties  ;(^)  but  if  it  is  merely  to  bring 
before  the  court  formal  parties,  the  defendants  in  the  original 
bill  need  not  to  be  made  parties,  {q) 

Where,  however,  a  person  has  acquired  the  interest  of  a 
party  to  a  suit,  and  thinks  proper  to  file  a  supplemental  bill 
himself,  he  must  make  all  the  parties  to  the  original  bill, 
whether  complainants  or  defendants,  parties  to  his  supple- 
mental bill,  {r)  So,  also,  where  one  of  the  several  complainants 
assigns  his  interest  to  a  stranger,  and  the  remaining  complain- 
ants file  a  supplemental  bill  against  the  assignee,  they  must 
also  make  the  defendants  to  the  original  bill  parties  to  the  sup- 
plemental bill,  {s) 

To  entitle  a  complainant  to  file  a  supplemental  bill,  and 
thereby  to  obtain  the  benefit  of  the  former  proceedings,  it  must 
be  in  respect  of  the  same  title  in  the  same  person,  as  stated  in 
the  original  bill.  He  cannot  file  such  a  bill  to  have  the  benefit 
of  the  former  proceedings,  if  he  claims  by  a  different  title,  {t) 

A  new  party,  representing  the  interest  of  a  former  party, 
who  comes  before  the  court  by  a  supplemental  bill,  whether 
filed  by  himself  or  by  the  complainant,  stands  exactly  in  the 
same  position  as  the  former  party,  is  bound  by  his  acts,  and 
may  be  subject  to  all  the  costs  of  the  proceeding  from  the 
beginning  of  the  suit,  {u)  Therefore,  it  has  been  held  that  a 
purchase)'  of  the  interest  of  a  party  jfjendenie  lite,  on  filing  his 
supplemental  bill,  comes  into  court,  whether  for  gain  or  loss, 
and  shall  be  liable  to  the  cost  of  the  proceeding,  from  the 
beginning  to  the  end  of  the  suit,  {v)  So,  also,  the  assignees  of 
a  bankrupt,  who  are  brought  before  the  court  by  supplemental 
bill,  may  be  liable  to  the  costs  of  the  whole  suit,  if  they  improp- 
erly resist  the  complainant's  demand,  {w) 

(p)  Jones  vs.  Jones,  3  Atk.  217. 

(q)  Id.  Calwell  vs.  Boyer,  8  Gill  &  J.  136  ;  Ensworth  vs.  Lambert,  4  Jolms. 
Ch.  R.  605 ;  McQowan  vs.  Yerks,  6  Johns.  Ch.  R.  450. 
(r)  3  Dan.  180 ;  2  Barb.  Ch.  Pr.  69. 
(«)   Feary  vs.  Stephenson,  1  Beav.  42. 

(«)  Welf  Eq.Pl.  189;  2  Barb.Ch.Pr. 69;  Tonkin Ys.Lethbridge, Coop.Eq.R.33. 
(«)  2  Barb.  Ch.  Pr.  69 ;  Mitf.  Eq.  PL  68. 
(v)  Anon.  1  Atk.  89. 
(m)  Whiteonib  vs.  MincMn,  5  Mad.  91 ;  2  Barb.  Ch.  Pr.  69. 


SUPPLEMENTAL   BILL.  207 

Form  of  Bill  —  Prayer  of. 

SECTION  IV. 
FOKM    OF    BILL. 

A  supplemental  bill  iiiiist  state  the  original  bill,  and  the 
proceedings  thereon ;  and  if  it  is  occasioned  by  an  event  snb- 
Beqnent  to  the  original  bill,  it  must  state  that  event,  and  the 
consequent  alteration,  with  respect  to  the  parties ;  and,  in  gen- 
eral, the  supplemental  bill  must  pray  that  all  the  defendants 
may  appear  and  answer  to  the  charges  it  contains,  (x) 

The  propriety  of  introducing  a  restatement  of  the  case  from 
the  original  bill,  into  the  supplemental  bill,  must  depend  upon 
the  question,  whether  the  object  of  the  supplemental  bill  is  to 
state  the  mere  fact  of  a  bill  having  been  filed,  or  to  put  in 
issue  any  of  the  circumstances  and  facts  stated  and  charged  in 
it.  {y)  If  the  former  is  the  object,  the  mere  statement  that  the 
complainant  had  filed  a  bill  which  prayed  such  and  such  relief, 
will  be  sufficient ;  or,  if  the  pleader  should  not  think  this 
sufficient,  he  may  introduce  a  short  recital,  (z)  If  the  latter  is 
the  object  in  view,  the  ficts  intended  to  be  stated  may  be  set 
out  in  the  supplemental  bill,  either  by  way  of  original  state- 
ment, or  as  a  restatement  of  the  facts  in  the  original  bill,  with 
an  averment  of  their  truth,  (a) 

Prayer  of. — A  supplemental  bill  generally  calls  upon  the 
defendant  to  answer  the  supplemental  matter  only.  If,  how- 
ever, it  is  occasioned  by  the  transmission  of  the  interest  of  a 
defendant,  who  has  not  answered  the  original  bill,  and  it  is 
necessary  to  have  a  discovery  from  the  new  defendant,  of  the 
matters  in  the  original  bill,  it  may  pray  that  the  defendant 
may  answer  the  original  bill.  (5)  And  in  such  case  the  defend- 
ant will  be  bound  to  answer  the  original,  as  well  as  the 
supplemental  bill,  (c) 

(xl    2  Barb.  Ch.  Pr.  70 ;  Mitf.  Eq.  PI.  75  ;  Story's  Eq.  PL  §  343. 

(y)    Story's  Eq.  PL  §  343 ;  2  Barb.  Ch.  Pr.  71. 

(z)    3  Dan.  177  ;  Gilb.  For.  Rom.  210 ;  2  Barb.  Ch.  Pr.  71. 

(o)    2  Barb.  Ch.  Pr.  71 ;   Vigers  vs.  Lord  Audley,  9  Sim.  72. 

(6)    Vigers  vs.  Lord  Audley,  9  Sim.  72. 

(c)    3  Dan.  72 ;  2  Barb.  Ch.  Pr.  72 ;  see  Asbee  vs.  Shipley,  Mad.  &  Geld.  296. 


208  SUPPLEMENTAL   BILL. 


Form  of  a  Bill. 


I?o.  SJj..  Supplemental  hill  for  speevfi<i  performance^  stating 
that  defendant  has  brought  ejectments  praying  for  injunc- 
tion, etc. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of 5  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  3^our  orator  exhibited  his  bill  of  complaint 
in  this  honorable  court  against  C.  D,,  thereby  praying  that  the 
said  C.  D.  might  be  decreed  specifically  to  perform  his  agreement 
with  your  orator,  touching  the  sale  of  the  real  estate  in  the  said 
bill  mentioned,  and  to  execute  to  your  orator  a  deed  therefor, 
your  orator  being  ready  and  willing  to  do  everything  on  his 
part  required  to  be  performed  in  pursuance  of  said  agreement. 

Your  orator  further  represents  that  the  said  C.  D.  appeared 
and  put  in  his  answer  to  the  said  bill,  and  your  orator  tiled  a 
replication  thereto ;  as  by  the  files  of  the  said  cause  will  more 
fully  appear;  which  said  cause  is  still  pending  and  undeter- 
mined in  this  court. 

Your  orator,  by  way  of  supplement,  further  represents,  that 
since  the  filing  of  said  bill,  the  said  C.  D.  has  commenced  an 
action  of  ejectment  upon  the  common  law  side  of  this  court,  for 
the  purpose  of  recovering  the  possession  of  the  said  premises ; 
which  action  of  ejectment  is  now  pending  and  undetermined  ; 
that  your  orator  has  requested  the  said  C.  D.  to  desist  from 
proceeding  with  the  said  action  of  ejectment,  but  the  said  C.  D. 
refuses  so  to  do,  and  still  continues  the  prosecution  thereof. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  who  is  made  a  party  defendant  to  this  supple- 
mental bill,  may  be  required  to  make  full  and  direct  answer  to 
the  same,  hut  not  under  oatli^  the  answer  under  oath  heing 
herehy  waived  /  that  he  may  be  restrained  by  the  injunction  of 
this  court,  from  proceeding  in  said  acrtion  of  ejectment,  and  also 
from  commencing  any  other  action  or  proceeding  at  law  foi 
the  purpose  of  turning  your  orator  out  of  the  possession  of  the 
said  premises ;  and  that  this,  your  orator's  bill  of  complaint 
may  be  deemed  and  taken  as  and  for  a  bill  of  supplement  to 
his  said  original  bill ;  and  that  your  orator  may  have  such 
other  and  further  relief  in  the  premises  as  equity  may  require, 
and  to  your  honor  shall  seem  meet. 

May  it  please,  etc.  {Prayer  for  injunction,  see  ante,  page 
73,  and  add  affidoAjit.) 


SUPPLEMENTAL  BILL.  209 

Form  of  a  Bill. 

Wo.  85.    Supplemental  hill  against  the  assignee  of  a  hankrujpt 

defendoMt. 

To  the  Honorable ,  Judge  of  the Court,  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  your  orator  tiled  his  bill  of  complaint  in 
this  honorable  court  against  C.  D.,  of,  etc.,  praying,  etc.,  {Here 
insert  the  substance  of  the  prayer  ;  that  the  said  C.  D.  having 
been  served  with  process,  appeared  and  put  in  his  answer  to 
the  said  bill ;  and  your  orator  replied  to  the  said  answer ;  but 
before  any  further  proceedings  were  had  in  the  said  cause,  and 
on,  or  about,  etc.,  the  said  C.  D.  was,  by  the  district  court  in 

and  for  the district  of ,  adjudged  a  bankrupt ;    and 

one  E.  F.,  the  defendant  hereinafter  named,  having  since  been 
duly  chosen  assignee  of  the  estate  and  eifects  of  the  said  bank- 
rupt ;  and  the  estate  and  effects  late  of  the  said  bankrupt  having 
been  conveyed  to  the  said  assignee ;  and,  therefore,  your  orator 
is  advised  that  he  is  entitled  to  the  same  relief  against  the  said 
E.  F.,  as  he  would  have  been  entitled  to  against  the  said  C.  D. 
if  he  had  not  become  bankrupt. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  E.  F.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut 
not  on  oath,  the  ansiver  under  oath  being  hereby  waived  /  and 
that  your  orator  may  have  the  full  benefits  of  the  said  suit  and 
proceedings  therein  against  the  said  E.  F. ;  and  may  have  the 
Bame  relief  against  him  as  your  orator  might  or  could  have  had 
against  the  said  C.  D.,  in  case  he  had  not  become  bankrupt ;  and 
that  your  orator  may  have  such  other  and  further  relief  in  the 
premises  as  equity  may  require,  and  to  your  honor  shall  seem 
meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 
chancery,  directed  to  the  sheriff  of  the  county  of ,  com- 
manding him  that  he  summons  the  defendant  E.  F.,  etc.,  to 

appear  before  the  said  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in ,  in  the  county 

of aforesaid,  then  and  there  to  answer  this  bill,  etc. 

Sol.  for  Complainant. 

14 


210  SUPPLEMENTAL   BILL. 

Petition  for  Leave  to  File  —  Form  of  Petition. 

SECTION  V. 
PETITION    FOB    LEAVE   TO    FILE. 

A  motion,  based  upon  a  petition,  for  leave  to  file  a  supple- 
mental bill,  is  ordinarily  addressed  to  the  discretion  of  the 
court.  Leave  is  generally  granted  of  course,  if  probable  cause 
for  filing  it  is  shown.  The  court  will  examine  the  question 
only  so  far  as  to  ascertain  that  it  is  not  intended  for  vexation 
or  delay ;  (c)  and  in  ordinary  cases,  the  defendant  is  not  enti- 
tled to  notice  of  the  application  for  such  order,  {d) 

The  57th  rule  for  practice  in  the  courts  of  equity  of  the 
United  States,  requires  notice  to  be  given  to  the  defendant,  of 
an  intended  application  for  leave  to  file  a  supplemental  bill. 

J^o.  86.    Petition  for  leave  to  file  a  sujpjylemental  hill. 

In  the Court. 

A.  B.  )  Term,  18  — . 

vs.     >  In  Chancery. 

CD.) 
To  the  Honorable  ■ ,  Judge   of  the Court  of  the 

County  of ,  in  the  State  of , 

In  Chancery  sitting : 

The  petition  of  A.  B.,  the  above  named  complainant,  respect- 
fully represents,  that  on,  etc.,  your  petitioner  filed  his  bill  in 
this  honorable  court,  against  the  defendant  C.  D.,  for  the  pur- 
pose of,  etc.,  {State  generally  the  object  of  the  Mil,)  and  praying, 
etc.     {State  the  substance  of  the  prayer.) 

And  your  petitioner  further  represents,  that  the  said  C.  D., 
being  served  with  summons,  appeared  to  said  bill,  and  put  in 
his  answer  thereto,  to  which  the  petition  filed  a  replication ; 
that  afterwards,  and  before  any  further  proceedings  were  had 
in  said  cause,  etc.  {Here  state  the  supplemental  matter) ;  where- 

(c)  Turner  vs.  Berry,  3  Gilm.  541 ;  Tappan  vs.  Evans,  12  N.  H.  330 ; 
Pedrick  vs.  White,  1  Met.  76 ;  Kennedy  vs.  Georgia  State  Bank,  8  How.  U. 
S.  586  ;  Winn  vs.  Albert,  2  Md.  Ch.  Decis.  42 ;  Eager  vs.  Price,  2  Paige,  Cli. 
R.  333  ;  Walker  vs.  Hallett,  1  Ala.  (N.  S.)  379 ;  Lawrence  vs.  Bolton,  3  Paige, 
Ch.  R.  294. 

{d)  Eager  vs.  Price,  3  Paige,  Cli.  R.  333 ;  Lawrence  vs.  Bolton,  3  Paige, 
Ch.  R.  294. 


SUPPLEMENTAL   BILL.  211 

Process  —  Defenses  to. 

fore  your  petitioner  is  advised,  that  it  is  necessary  to  bring  the 
said  E.  F.  before  this  court,  as  a  party  defendant  to  this  suit. 

Tour  petitioner  therefore  prays  that  leave  may  be  granted  to 
him  to  file  a  supplemental  bill  against  the  said  E.  F.,  for  the 
purpose  of  making  him  a  defendant  to  this  suit,  with  proper 
and  apt  words  to  charge  him  as  such,  and  with  such  prayer  for 
relief  as  may  be  proper,  and  for  such  other,  etc. 

Solicitor  for  cornplainant.  A.  B. 

{Add  affidavit.) 

SECTION  VI. 
PKOCESS,    ETC. 

Upon  the  tiling  of  a  supplemental  bill,  it  is  not  necessary 
that  a  summons  should  issue  against  a  party  already  in  court, 
nor  that  an  appearance  be  entered,  before  a  pro  confesso  order 
can  be  entered.  If  new  parties  are  made  defendants  to  the 
bill,  process  must  issue  as  in  other  cases,  {e) 

SECTION  VII, 
DEFENSES   TO. 

The  defendant  to  a  supplemental  bill  may  either  demur, 
plead  or  answer,  as  in  other  cases. 

Demurrer. — If  the  bill  is  filed  without  any  sufficient  grounds 
for  a  supplemental  bill,  the  defendant  may  demur,  {f)  Thus, 
if  it  appears  upon  the  face  of  the  bill,  that  all  the  matters 
alleged  therein  arose  previous  to  the  filing  of  the  original  bill, 
and  might  have  been  inserted  therein  by  way  of  amendment, 
■the  objection  may  be  taken  by  demurrer ;  [g)  even  though  the 
bill  alleges  that  the  facts  were  not  known  to  the  complainant 
until  the  oi'iginal  cause  was  at  issue.  (A) 

Many  of  the  causes  of  demurrer  which  apply  to  original 

{e)   Mix  vs.  Beach,  46  111.  311. 

(/)  Lawrence  vs.  Bolton,  3  Paige,  Ch.  R.  294. 

(g)   Id. ;  1  Barb.  Ch.  Pr.  54 ;  2  Id.  75. 

{Ji)  Colclough  vs.  Evans,  4  Sim.  76. 


212  SUPPLEMENTAL   BILL. 

Demurrer  to  —  Form  of  Demurrer  —  Plea. 

bills,  also  apply  to  supplemental  bills ;  but  there  are  some 
grounds  of  demurrer  which  are  applicable  solely  to  supple- 
mental bills,  {i) 

If  a  supplemental  bill  is  filed  upon  matters  arising  subse- 
quent to  the  time  of  filing  the  original  bill,  against  a  person 
who  claims  no  interest  out  of  the  matters  in  litigation  by  the 
former  bill,  the  defendant  to  the  bill  thus  brought  as  a  supple- 
mental bill  may  demur;  especially  if  the  bill  prays  that  he 
may  answer  the  matters  charged  in  the  original  bill.  (J) 

A  defendant  may  also  demur  if  the  same  complainant  files 
a  supplemental  bill  claiming  the  same  matter  as  in  his  original 
bill,  but  upon  a  title  totally  distinct,  {k) 

A  motion  to  strike  a  supplemental  bill  from  the  file  for  irregu- 
larity, on  the  ground  that  it  does  not  state  supplemental  matter, 
will  not  lie.     The  proper  course  in  such  case  is  to  demur.  (I) 

JVo.  87.     Demurrer  to  sujpjplemental  hill. 

In  the Court. 

C.  D.  I  Term,  18—. 

ats.    \  In  Chancery. 
A.  B.  f 

The  demurrer  of  C.  D.,  defendant,  to  the  supplemental 
bill  of  A.  B.  complainant. 

This  defendant,  etc.,  {Proceed  as  in  No.  16,  ante,  p.  108,  to 
the  *,  theTi)  that  this  defendant,  as  appears  by  the  said  supple- 
mental bill,  is  not  a  party  to  the  original  bill  therein  in  part 
stated  and  set  forth ;  nor  does  it  appear  by  the  said  supple- 
mental bill,  that  any  new  matter  has,  or  is  pretended  to  have 
arisen,  since  the  original  bill  was  tiled,  or  that  there  is  any 
reason  that  this  defendant  should  not,  if  necessary,  be  made 
a  party  thereto  by  amendment. 

Wherefore,  etc.    {Conclude  as  in  iVo.  16.) 

Plea. — Besides  those  grounds  of  plea  which  are  common  to 
supplemental   and   original    bills,   if  a   supplemental    bill   is 

(j)    3  Dan.  183 ;  2  Barb.  Cli.  Pr.  75. 

(jf)   Mitf.Eq.P1.203;  Baldwin\s,.Machown,Z Mk.'R.^l'H;  Story's Eq.Pl. § 843. 
\lc)    Tonkins  vs.  Letlibridge,  Coop.  Eq.  R.  83  ;  2  Barb.  Ch.  Pr.  75 ;  Story's 
Eq.  PI.  §  343. 

(Z)    Bowyer  vs.  Bright,  13  Price,  316. 


SUPPLEMENTAL   BILL.  213 

Practice,  etc.  —  Form  of  Plea  —  Answer. 

brought  on  matter  which  arose  before  the  original  bill  was 
filed,  and  which  might  have  been  introduced  into  the  original 
bill,  and  this  fact  does  not  appear  upon  the  face  of  the  supple- 
mental bill,  so  as  to  enable  the  defendant  to  demur,  it  may  be 
pleaded,  (w)  So,  if  a  supplemental  bill  is  filed  without  any 
sufficient  grounds,  the  defendant  may  make  the  objection  by 
plea,  {n) 

Practice  as  to  demurrers  and  pleas. — Demurrers  and  pleas 
to  supplemental  bills  are  subject  to  the  same  rules,  both  with 
respect  to  their  form  and  substance,  and  to  the  practice  arising 
upon  them,  as  demurrers  and  pleas  to  original  bills,  {o) 

1^0.  88.     Plea  to  a  supplemental  hill. 

Court. 

Term,  18—. 

In  Chancery. 

The  plea  of  C.  D.,  defendant,  to  the  supplemental  bill 
of  A.  B.,  complainant. 

This  defendant,  etc.,  {Proceed  as  in  No.  28,  ante,  p.  119,  to 
the  *,  then)  the  several  matters  and  things  in  tlie  complainant's 
present  bill  stated  and  set  forth  by  way  of  supplement,  arose, 
and  were  well  known  to  the  complainant,  before  and  at  the 
time  the  complainant  filed  his  original  bill  in  this  cause ;  and 
that  such  several  matters  and  things  can  now  be  introduced, 
and  ought  so  to  be,  if  necessary,  by  amending  the  said  original 
bill. 

Wherefore,  etc.    {Conclude  as  in  No.  28.) 

Answer. — If  the  defendant  to  the  supplemental  bill  neither 
demurs  nor  pleads  to  it,  he  must  put  in  an  answer,  as  in  the 
case  of  an  original  bill.  If,  however,  there  is  any  matter  in 
the  supplemental  bill  which  is  properly  the  subject  of  demurrer 

(to)  2  Barb.  Ch.  Pr.  76  ;  Mitf.  Eq.  PI.  290 ;  Stafford  vs.  Howlett,  1  Paige, 
Ch.  R.  200. 

(n)  Id. ;  Lawrence  vs.  Bolton,  3  Paige,  Ch.  R.  294. 
{o)    3  Dan.  184    2  Barb.  Ch.  Pr  76. 


214  SUPPLEMENTAL   BILL. 

Answer  —  Replication  —  Evidence. 

or  plea,  he  may,  in  his  answer,  claim  the  same  benefit  of  it  as 
he  would  have  been  entitled  to  had  he  demurred  or  pleaded,  {p) 

Where  the  defendant  is  called  upon  to  answer  the  original 
bill,  at  the  same  time  he  is  called  upon  to  answer  the  supple- 
mental bill,  the  usual  course  is  to  include  the  answer  to  both 
in  the  same  answer,  {q)  It  is  not,  however,  absolutely  irreg- 
ular to  separate  them,  {r) 

The  form  of  an  answer  to  a  supplemental  bill,  and  the  man- 
ner of  putting  it  in,  are  the  same  as  in  the  case  of  an  answer  to 
an  original  bill,  and  are  subject  to  the  same  contingencies,  {s) 

After  the  answer  has  been  put  in,  and  the  proceedings  on 
the  supplemental  bill  have  arrived  at  the  same  point  at  which 
the  bill  stood,  they  then  proceed  by  the  same  gradation 
together,  {t) 

SECTION  VIII. 

REPLICATION    AND    EVIDENCE. 

Replication. — A  replication  may  be  filed  by  the  complainant 
in  a  supplemental  suit,  to  the  defendant's  answer  in  the  same 
manner  as  in  an  original  suit.  A  separate  replication  is  only 
necessary  where  there  has  already  been  a  replication  in  the 
original  suit.  Where  there  has  been  no  replication  in  the 
original  suit,  a  general  replication  will  apply  to  the  whole 
record,  and  not  merely  to  the  original  bill.  {\i) 

JEvidence. — The  new  matter  introduced  by  the  supplemental 
bill,  must  be  proved,  unless  it  is  admitted  by  the  answer  or 
otherwise.  If  not  proved,  the  supplemental  bill  will  be  dis- 
missed with  costs.     For  this  purpose  witnesses  may  be  exam- 

ip)   2  Barb.  Ch.  Pr.  76 ;  3  Dan.  184.. 

(?)    Vigers  vs.  Lord  Audley,  9  Sim.  408. 

(r)    Sayle  vs.  Graham,  5  Sim.  8  ;  2  Barb.  Ch.  Pr.  77. 

(«)    3  Dan.  Ch.  Pr.  185  ;  1  Barb.  Ch.  Pr.  140-147  ;  2  Id.  77. 

{t)    Lube's  Eq.  PI.  138 ;  2  Barb.  Ch.  Pr.  77. 

(u)  2  Barb.  Ch.  Pr.  77  ;  Catto7i  vs.  Earl  of  Carlisle,  5  Mad.  457  ;  Gillett  vs. 
Hall,  13  Conn.  R.  426  ;  Chateau  vs.  Ricef  1  Minn.  106 ;  Copen  vs.  Flesher,  1 
Bond,  440. 


SUPPLEMENTAL  BILL.  215 

Hearing  —  Entitling  Ordera. 

ined  as  to  the  new  matter  contained  in  tlie  supplemental  suit,  (v) 
And  where  no  witnesses  have  been  examined  in  the  original 
cause,  they  may  be  examined  to  prove  the  matters  in  issue  in 
the  original  cause,  as  well  as  those  in  issue  in  the  supplemental 
suit,  (w) 

A  supplemental  suit  is  merely  a  continuation  of  the  original 
suit,  and  whatever  evidence  was  properly  taken  in  the  original 
suit,  may  be  made  use  of  in  both  suits ;  even  though  not 
entitled  in  the  supplemental  suit,  (a?) 

SECTION  IX. 

HEARING. 

If  there  has  been  no  decree  in  the  original  suit  before  the 
tiling  of  the  supplemental  bill,  the  original  and  supplemental 
suit  may  come  on  for  hearing  together,  unless  the  supplemental 
bill  is  for  discovery,  and  one  decree  will  be  made  in  both,  (y) 
But  if  a  decree  has  been  rendered  before  the  event  of  the  sup- 
plemental bill  was  rendered  necessary,  there  must  be  a  decree 
on  the  supplemental  bill ;  for  which  purpose  the  supplemental 
cause  must  be  brought  to  a  hearing  alone ;  or  it  may  be  heard 
with  the  original  cause  for  further  direction.  {2) 

If  the  supplemental  is  unnecessarily  or  improperly  filed,  it 
will  be  dismissed  at  the  hearing,  although  the  complainant 
obtains  a  decree  on  the  original  bill,  (a) 

Entitling  orders. — When  the  original  and  supplemental  suits 
proceed  as  one  cause,  the  orders  and  papers  should  be  entitled, 
"  A.  B.,  complainant,  C.  D.,  defendant — by  original  and  supple- 
mental bills."  {])) 

(«)    2  Barb.  Ch.  Pr.  77-78. 

{w)  2  Barb.  Ch,  Pr.  78 ;  3  Dan.  186. 

(cr)  Id.;  Giles  vs.  Giles,  1  Keen,  685  ;  Mitf.  Eq.  PI.  74;  Garth  vs.  Wood, 
2  Atk.  R.  174. 

{y)    Mitf.  Eq.  PI.  64,  75 ;  Seaton  on  Decrees,  385. 

(s)  2  Barb.  Cli.  Pr.  79 ;  Seaton  on  Decrees,  386  ;  Mitf.  Eq.  PI.  64;  Adams 
vs.  Downing,  2  Mad.  61. 

(a)    Eager  vs.  Price,  2  Paige,  Ch.  R.  339. 

(6)    John  vs.  Brown,  Seaton  on  Decrees,  385. 


216  SUPPLEMENTAL  BILL. 

Dismissing  Bills. 

Dismissing  hills. — If  the  supplemental  bill  is  unnecessarily 
or  improperly  filed,  it  will  be  dismissed  at  the  hearing,  although 
the  complainant  obtains  a  decree  on  the  original  bill,  (c)  So, 
if  no  proof  is  made  of  the  supplemental  matter,  the  bill  will  be 
dismissed  at  the  hearing,  {d) 

(c)  Eager  vs.  Price,  2  Paige,  Ch.  R.  339. 

[d)  BagnaU  vs.  Bagnall,  2  Eq.  Abr.  173 ;  6  Bro.  P.  C.  86 ;  2  Barb.  Ch. 
Pr.  79. 


CHAPTER  XYI. 

BILLS    IN    THE    NATURE    OF    SUPPLEMENTAL    BILLS. 

Section  1.    Original  Bills  in  the  Nature  of  Supplemental  Bills. 
2.    Bills  to  Carry  Decrees  into  Execution. 


SECTION  I. 
ORIGINAL  BILLS  EST  THE  NATURE  OF  SUPPLEMENTAL  BILLS. 

When  proper. — A  supplemental  bill  is  a  mere  continuation 
of  the  original  suit  by  or  against  a  party  having  or  acquii'ing 
the  interests  of  a  former  party,  and  it  forms,  together  with  the 
original  bill  and  the  proceedings  under  it,  but  one  record. 
Cases,  however,  sometimes  occur  in  practice  in  which  the  interest 
of  an  original  party  to  a  suit  is  completely  determined,  and 
another  party  becomes  interested  in  the  subject  matter,  by  a  title 
not  derived  from  the  original  party,  but  in  such  a  manner  as  to 
render  it  but  just  and  reasonable  that  the  benefit  of  the  former 
proceedings  should  be  had  by  or  against  such  other  party, 
without  incurring  the  expense  and  risk  of  commencing  an 
entirely  new  proceeding.  The  course  of  the  court,  therefore, 
enables,  that  in  such  cases  the  benefit  of  the  former  proceed- 
ings may  be  obtained  by  means  of  a  bill  called  an  original  bill 
in  the  nature  of  a  supplemental  bill,  {a) 

The  principal  difference  between  this  and  a  supplemental 
bill  seems  to  be  that  a  supplemental  bill  is  applicable  to  such 
cases  only,  where  the  same  parties  or  the  same  interests  remain 
before  the  court ;  whereas,  an  original  bill  in  the  nature  of  a 
supplemental  bill,  is  properly  applicable  where  new  parties, 
with  new  interests,  arising  from  events  occurring  subsequent  to 
the  institution  of  the  suit  are  brought  before  the  court,  (b) 

(a)  2  Barb.  Ch.  Pr.  84;  3  Dan.  230;  Hinde,  Cb.  Pr.  71;  Blake,  Ch. 
Pr.  38. 

(6)    Coop.  Eq.  PI.  75  ;  Story's  Eq.  PI.  §  345. 


218      BILLS   IN  NATURE   OF   SUPPLEMENTAL. 

Original  Bills  in  the  Nature  of  —  When  Proper. 

A  bill  of  this  nature  is  properly  called  an  original  bill  in 
the  nature  of  a  supplemental  bill,  because  it  is  original  as  to 
the  new  parties  and  new  interests;  and  it  is,  in  some  sort, 
supplemental  also,  as  being  an  appendage  to  the  former  bill, 
as  to  the  old  parties  and  old  interests,  (c) 

A  bill,  in  the  nature  of  a  supplemental  bill,  may  also  be 
required,  not  only  where  new  interests  arise,  either  before  or 
after  a  decree,  but  also  where  relief  of  a  different  kind,  or 
upon  a  different  principle,  is  required  from  that  in  the  original 
decree,  {d) 

And  an  original  bill  in  the  nature  of  a  supplemental  bill 
seems  to  differ  from  an  original  bill  in  the  nature  of  a  bill  of 
revivor  in  this,  that  upon  the  latter,  the  benefit  of  the  former 
proceedings  is  absolutely  obtained ;  so  that  the  pleadings  in 
the  first  cause,  as  also  the  depositions  of  witnesses,  may  be 
used  in  the  same  manner  as  if  they  had  been  filed  or  taken  in 
the  second  cause ;  and  if  any  decree  has  been  made  in  the  first 
cause,  the  same  decree  will  be  made  in  the  second  cause.  But 
in  the  case  of  an  original  bill  in  the  nature  of  a  supplemental 
bill,  a  new  defense  may  be  made ;  the  pleadings  and  deposi- 
tions cannot  be  used  to  the  same  extent  as  if  filed  or  taken  in 
the  same  cause ;  and  the  decree,  if  any  has  been  obtained,  is 
not  otherwise  of  advantage  than  as  it  may  be  an  inducement 
to  the  court  to  make  a  similar  decree,  {e) 

A  bill  of  this  kind  is  not,  in  all  cases,  either  proper  or 
necessary,  merely  because  new  events  have  occurred  since  the 
original  bill.  But  the  flicts  must  be  material  to  the  original 
cause,  or  be  such  as  could  not,  in  that  stage  of  the  original 
cause,  be  brought  into  it  without  such  a  bill.  {/)     For  where 

(c)  Story's  Eq.  PI.  §  346 ;  Coop.  Eq.  PL  75,  76  ;  Hinde,  Ch.  Pr.  44  ;  Mole 
vs.  Smith,  1  Jac.  &  Walk.  R.  665  ;  Foster  vs.  Diason,  6  Mad.  R.  59  ;  Wellesltf 
vs.  Wellesly,  17  Sim.  59  ;  Lee  vs.  Lee,  Hare,  R.  621 ;  Rohertson  vs.  Southgate, 
5  Hare,  R.  223. 

(d)  Story's  Eq.  PL  §  351  b  ;  Rodson  vs.  Ball,  11  Sim.  456,  463  ;  Phillips' 
Ch.  R.  177;  Taijlor  vs.  Taylor,  1  Mac.  &  Gord.  R.  405. 

(e)  Barton's  Suit  in  Eq.  132,  133;  2  Barb.  Ch.  Pr.  85;  Mitf.  Eq.  PL  64; 
3  Dan.  165 ;  Adams  vs.  Dowding,  2  Mad.  53. 

(/)  Story's  Eq.  PL  §  332,  335-337,  352. 


BILLS  IN   NATURE   OF  SUPPLEMENTAL.       219 

Original  Bills  in  the  Nature  of  —  Form  of. 

there  is  no  alteration  in  the  interest  of  the  parties,  nor  any- 
particular  circumstance  requiring  further  discovery,  but  when 
a  fact  only  has  occurred  which  might  be  proved  under  the 
proceedings  in  the  original  bill,  as  in  taking  an  account  before 
the  master  under  the  prayer  of  the  original  bill,  and  the  relief 
is  not  varied  by  the  supplementary  matter ;  but  the  complain- 
ant may  have  the  relief  prayed  for  by  such  supplementary 
bill  under  the  original  bill,  the  supplemental  bill  is  im- 
proper, {g) 

Form  of. — A  bill  of  this  nature  must  state  the  original  bill, 
the  proceedings  upon  it,  the  event  which  has  determined  the 
interest  of  the  party  by,  or  against,  whom  the  former  bill  was 
exhibited,  and  the  manner  in  which  the  property  has  invested 
in  the  person  become  entitled  thereto.  It  must  then  show  the 
gi'ound  upon  which  the  court  ought  to  grant  the  benefit  of  the 
former  suit,  to  or  against  the  person  so  become  entitled,  and 
pray  for  process  against  the  defendant,  to  the  end  that  he  may 
answer  the  premises,  and  that  the  complainant  may  have 
similar  relief  against  him  to  that  which  was  prayed  in  the 
original  bill.  (Ji)  This  bill,  although  partaking  of  the  nature 
of  a  supplemental  bill,  is  not  an  addition  to  the  original  bill, 
but  another  original  bill,  which,  in  its  consequences,  may  draw 
to  itself  the  advantage  of  the  proceedings  on  the  former 
bill.  (^) 

Wo.  89.     Original  Jnll  in  the  nature  of  a  supplemental  hill. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancer}'  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  on  C.  D.,  of,  etc.,  being  indebted  to  E.  F., 

{g)  Adams  vs.  Dowding,  3  Mad.  R.  55;  Roberts  vs.  Roberts,  16  Sim.  R. 
367;  Story's  Eq.  PI.  §  353. 

[h)  Lube's  Eq.  PL  237  ;  Mitf.  Eq.  PI.  98  ;  3  Barb.  Ch.  Pr.86  ;  Story's  Eq. 
PI.  §  853. 

(i)  Phelps  vs.  Sproule,  4  Sim.  R.  318 ;  Vigers  vs.  Lord  Audley,  9  Sim. 
R.  75  ;  Story's  Eq.  PI.  §  353. 


220      BILLS   IN   NATUKE   OF   SUPPLEMENTAL. 

Original  Bills  in  tlie  Nature  of  —  Form  of. 

of,  etc.,  in  the  sum  of dollars,  made  and  delivered  to  the 

said  E.  F.  liis  certain  promissory  note  of  that  date,  and  thereby 

promise  to  pay  the  said  E.  F.  the  said  sum  of dollars,  in 

after  date,  with  interest  at  the  rate  of per  cent,  per  annum, 

as  will  appear  by  the  said  note,  ready  to  be  produced  in  court, 
and  by  the  copy  of  the  same  hereto  attached,  marked  "  Ex- 
hibit A,"  and  made  a  part  of  this  your  orator's  bill.  That  to 
secure  the  payment  of  the  said  principal  sum  and  interest  as 
aforesaid,  the  said  C.  D.  on  the  same  day,  by  his  mortgage  deed 
of  that  date,  conveyed  to  the  said  E.  F.  in  fee  simple,  the 
premises  described  as  follows,  viz.  :  {Here  insert  description^ 
subject,  however,  to  a  condition  of  defeasance,  upon  the  pay- 
ment of  the  principal  sum  and  interest  aforesaid,  according  to 
the  tenor  and  effect  of  the  said  note  ;  which  said  mortgage  deed 
was  on,  etc.,  filed  for  record  in  tlie  recorder's  ofiice  of  the  county 

of aforesaid;  as  will  appear  by  the  said  mortgage  deed, 

ready  to  be  produced  in  court,  and  by  the  copy  thereof  hereto 
attached,  marked  "  Exhibit  B,"  and  made  a  part  of  this  your 
orator's  bill. 

Your  orator  further  represents,  that  the  said  C.  D.  has  not 

yet  paid  the  said  principal  sum  of dollars,  or  such  interest 

thereon,  or  any  part  thereof,  although  the  same  long  since 
became  due ;  by  means  whereof  the  said  mortgaged  property 
became  forfeited,  subject  nevertheless  to  redemption  in  equity 
by  the  said  C.  D.,  his  heirs  and  assigns. 

Your  orator  further  represents,  that  on,  etc.,  the  said  E.  F. 
exhibited  his  original  bill  of  complaint  in  this  honorable  court, 
against  the  said  0.  D.,  as  defendant  thereto,  thereby  stating 
the  matters  and  things  hereinbefore  stated,  and  praying  that 
an  account  might  be  taken  in  that  behalf,  by  or  under  the 
direction  of  the  court,  of  what  was  due  to  him  for  principal 
and  interest  on  the  said  note  and  mortgage,  and  that  the  said 
C.  D.  might  be  decreed  to  pay  to  him,  the  said  E.  F.,  whatever 
sum  should  appear  to  be  due  to  him,  together  with  the  co'sts 
of  that  suit,  by  a  short  day  to  be  fixed  by  the  court ;  or  that 
in  default  of  such  payment  the  said  mortgaged  property  may  be 
sold,  as  the  court  sliould  direct,  to  satisfy  such  debt  and  costs ; 
that  in  case  of  such  sale,  and  of  a  failure  to  redeem  therefrom 
according  to  law,  the  said  C.  D.,  and  all  persons  claiming 
through  or  under  him,  after  tlie  commencement  of  that  pro- 
ceeding, might  be  forever  barred  and  foreclosed  of  all  equity 
of  redemption,  of  the  said  mortgaged  property ;  and  that  he. 
the  said  E.  F.,  might  have  such  other  and  further  relief  in  the 
premises,  as  equity  may  require,  and  to  the  court  might  seem 
meet. 


BILLS   IN   NATURE   Oh'  SUPPLEMENTAL.      221 

Original  Bills  in  the  Nature  of  —  Form  of. 

And  your  orator  further  represents,  that  the  said  C.  D.  being 
duly  summoned,  appeared  and  put  in  liis  answer  to  the  said 
bill,  to  which  the  said  E.  F.  replied,  and  that  the  said  cause 
being  at  issue,  witnesses  were  examined  on  both  sides  and 
the  proofs  closed  ;  as  by  such  bill,  answer,  replication  and  pro- 
ceedings now  remaining  as  of  record  in  this  honorable  court, 
reference  being  thereto  had,  will  more  fully  appear. 

And  your  orator  further  represents,  that  before  any  further 
proceedings  were  had  in  the  said  cause,  and  on  or  about,  etc., 
the  said  E.  F.  was  adjudged  a  bankrupt,  by  the  district  court 

for  the district  of ,  and  all  the  property,  effects,  and 

rights  of  property  of  the  said  E.  F.  became  divested  out  of 
him,  and  became  vested  in  your  orator  as  the  general  assignee 
in  bankruptcy,  appointed  as  such  by  the  said  district  court ;  as 
by  the  said  proceedings  in  bankruptcy,  now  remaining  as  of 
record  in  the  said  district  court,  reference  being  thereto  had, 
will  more  fully  appear. 

And  your  orator  further  represents,  that  by  virtue  of  his 
appointment  as  assignee  in  bankruptcy  of  the  said  E.  F.,  as 
aforesaid,  your  orator  has  become  entitled  to  the  said  principal 
sum,  and  interest  so  due  on  the  said  note  and  mortgage,  as 
aforesaid. 

And  your  orator  further  represents,  that  by  the  said  bank- 
ruptcy of  the  said  E.  F.,  the  said  suit  so  instituted  by  him  has 
become  defective,  but  that  your  orator,  as  assignee  as  aforesaid, 
is  entitled  to  have  the  benefit  of  such  suit  and  the  proceedings 
therein,  and  to  prosecute  the  same  against  the  said  C.  D.,  from 
the  period  when  it  so  became  defective  as  aforesaid,  and  that 
for  that  purpose  this  his  bill  ought  to  be  taken  as  supplemental 
to  the  said  bill  of  the  said  E.  F. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end 
that  the  said  C.  D.,  who  is  made  party  defendant  to  this  bill, 
may  be  required  to  make  full  and  peiiect  answer  to  the  same, 
hut  not  under  oath,  the  answer  tmder  oath  heing  herehy  waived  / 
and  that  it  may  be  declared  that  your  orator,  as  such  assignee 
as  aforesaid,  is  entitled  to  have  the  benefit  of  the  said  original 
suit,  and  the  proceedings  therein  ;  and  that  your  orator  may  be 
at  liberty  to  prosecute  the  same  against  the  defendant  from  the 
period  when  the  said  original  suit  so  became  defective  by  the 
bankruptcy  of  the  said  JE.  F.,  as  aforesaid ;  and  that  for  that 
purpose  this  bill  may  be  taken  as  supplemental  to  the  said  bill 
of  the  said  E.  F. ;  and  that  your  orator  may  have  the  same 
relief  against  the  defendant  as  the  said  E.  F.  might  have  had 
if  he  had  not  become  bankrupt ;  and  that  your  orator  may  have 


222      BILLS   IN  NATURE   OF   SUPPLEMENTAL. 

Bills  to  carry  Decrees  into  Execution  —  Nature  of. 

such  other  and  further  relief  in  the  premises  as  equity  may 
require,  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.     {Pray  jprocess  as  in  No.  86, 
ante,  page  209.) 

Proceedings  upon. — The  proceedings  upon  a  bill  of  this  de- 
scription are  the  same  as  those  upon  original  bills  in  general,  {j) 


SECTION  II. 

BILLS    TO    CAKKT    DECKEES    INTO    EXECUTION. 

Nature  of.  —  Sometimes,  from  the  neglect  of  parties,  or 
some  other  cause,  it  becomes  impossible  to  carry  a  decree  into 
execution  without  the  further  decree  of  court.  This  happens, 
generally,  in  cases  where  parties  having  neglected  to  proceed 
upon  the  decree,  their  rights  under  it  become  so  embarrassed 
by  a  variety  of  subsequent  events,  that  it  is  necessary  to  have 
the  decree  of  the  court  to  settle  and  ascertain  them,  (h)  Some- 
times, such  a  bill  is  exhibited  by  a  person  who  was  not  a  party, 
or  who  does  not  claim  under  any  party  to  the  original  decree, 
but  who  claims  in  a  similar  interest,  or  who  is  unable  to  obtain 
the  determination  of  his  own  rights,  till  the  decree  is  carried 
into  execution.  Or,  it  may  be  brought  by  or  against  any  per- 
son, claiming  as  assignee  of  a  party  to  the  decree.  (Z) 

The  court  in  these  cases,  in  general,  only  enforces,  but  does 
not  vary  the  decree.  But  upon  circumstances  it  has  sometimes 
reconsidered  the  original  directions,  and  varied  them  in  case 
of  mistake,  (m)  And,  under  peculiar  circumstances,  it  has  even 
refused  to  enforce  the  decree ;  {n)  though,  in  otker  cases,  the 

{j)   2  Barb.  Cli.  Pr.  86  ;  3  Dan.  Ch.  Pr.  192. 

{k)    Hinde's  Pr.  68 ;    3  Dan.  Ch.  Pr.  192 ;  Mitf .  Eq.  PI.  95 ;  Barb.  Ch. 

Pr.  86. 

{I)  Story's  Eq.  PI.  §  429  ;  Coop.  Eq.  PI.  98,  99 ;  Organ  vs.  Gardiner,  1 
Cas.  in  Ch.  231 ;  Lord  Gartaret  vs.  Paschal,  3  P.  Wms.  197 ;  Binks  vs.  Binks, 
2  Bligh,  593  ;  Rylands  vs.  LatoueJie,  2  Bligh,  5(iG. 

(to)  Mitf.  Eq.  PI.  95  ;  Coop.  Eq.  PI.  99  ;  Story's  Eq.  PL  §  430. 

(73)  Id. ;  Attorney  General  vs.  Day,  1  Ves.  218 ;  Johnson  vs.  Northey^ 
Prac.  In  Ch.  134. 


BILLS   L\    NA'i-UWK   OF   SUPPLEMENTAL.       223 

Bills  to  carry  Decrees  into  Execution  —  Form  of. 

courts  seem  to  have  considered  that  tlie  law  of  the  decree  ought 
not  to  be  examined  on  a  bill  to  carry  it  into  execution,  (p) 

It  is  to  be  observed,  that  although  the  original  decree  may 
sometimes  be  controverted,  upon  a  bill  to  carry  it,  into  execu- 
tion, it  is  only  the  defendant  in  the  new  suit  who  can  call  it  in 
question.  The  complainant  never  can.  {_p)  The  complainant 
must,  if  not  satisfied  with  the  decree,  impeach  it,  either  by  a 
bill  of  review,  or  some  proceeding  of  that  kind',  {q) 

A  bill  to  carry  a  decree  into  execution  is,  generally,  partly 
an  original  bill,  and  partly  a  bill  in  the  nature  of  an  original 
bill,  although  not  strictly  original ;  and  sometimes  it  is  like- 
wise a  bill  of  review,  or  a  supplemental  bill,  or  both,  (r)  The 
frame  of  the  bill  is  varied  accordingly,  (s) 

JVo.  90.     Bill  to  carry  decree  into  execution. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Tour  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  your  orator  filed  his  bill  of  complaint  in 
this  honorable  court,  against  C.  D.,  stating,  etc.,  {Here  set  out 
the  substance  of  the  hill  —  say  a  hill  for  partition,)  and  praying, 
etc.     [Here  insert  the  prayer  of  that  hill.) 

And  your  orator  further  represents,  that  a  summons  being 
served  upon  the  defendant,  C.  D.,  he  appeared  and  put  in  his 
answer  thereto,  to  which  a  replication  was  filed.  And  the  said 
cause  being  at  issue,  the  same  came  on  to  be  heard  before  your 
honor  on,  etc.,  when  a  decree  was  rendered  b}^  your  honor  that 
etc.,  [Here  insert  the  substance  of  the  decree^  as  by  the  said 
proceedings  and  decree  now  remaining  as  of  record  in  this 
honorable  court,  reference  being  thereunto  had,  will  more  fully 
appear. 

And  your  orator  further  represents,  that  the  commission 

(o)  Attorney  Oenoral  vs.  Day,  2  Ves.  232  ;  SmytJie  va.  Clay,  1  Bro.  P.  C. 
453  ;  Story's  Eq.  PI.  §  430  ;  2  Barb.  Cli.  Pr.  87. 

ip)   Robinson  vs.  Robinson,  2  Ves.  225. 

{q)    2  Barb.  Ch.  Pr.  88 ;  Shepherd  vs.  TUky,  2  Atk.  348. 

(r)    Pendleton  vs.  Fay,  3  Paige,  Ch.  R.  204. 

(s)  Mitf .  Eq.  PI.  97 ;  Story's  Eq.  PI.  §  432 ;  See  PoU  vs.  GaUini.  I  Sim. 
&  Stu.  206. 


224      BILLS   IN  NATUEB   OF   SUPPLEMENTAL. 

Form  of  Bill  to  carry  Decree  into  Execution. 

awarded  by  the  said  decree  never  issued,  on  account  of  the  said 
E.  F.  going  abroad,  and  being,  until  lately,  out  of  the  jurisdic- 
tion of  this  court ;  but  the  said  E.  F.  having  now  returned,  and 
the  inconvenience  mentioned  in  your  orator's  former  bill  still 
existing,  your  orator  is  desirous  of  having  the  said  decree  forth- 
with carried  into  execution,  but  from  the  great  length  of  time 
which  has  elapsed,  and  the  refusal  of  the  said  C.  D.  to  concur 
therein,  your  orator  is  ad\ased  the  same  cannot  be  done  without 
the  assistance  of  this  honorable  court. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  tr  the  end  that 
the  said  C.  D.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  perfect  answer  to  the  same,  hut 
not  under  oath,  the  answer  under  oath  heing  hereby  waived : 
and  that  the  said  decree  may  be  directed  to  be  forthwith  carried 
specifically  into  execution ;  and  the  said  C.  D.  ordered  to  do 
and  concur  in  all  necessary  acts  for  that  purpose ;  and  that  yom 
orator  may  have  such  other  and  further  relief  in  the  premises 
as  equity  may  require,  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Prayer  for  summons  as  i?t 
No.  85,  ante,  page  W9.) 


CHAPTER  XYIL 

BILL    OF    REVIVOR. 

Section  1,  Nature  of. 

2  When  Proper. 

3.  Against  Whom  to  be  Fh,bd. 

4.  Frame  op  Bill. 

5.  Defenses  to. 

6.  Replication. 

7.  Order  to  Revive. 

8.  Hearing. 

9.  Effect  of  Revivor. 

SECTION  I. 
NATURE  OF  A  BILL  OF  REVIVOR. 

A  bill  of  revivor  is  tlie  usual  mode  of  reviving  and  continn- 
ing  tlie  proceedings,  whenever  there  is  an  abatement  of  the 
suit  before  its  final  consummation.  An  abatement  in  the  sense 
of  the  common  law,  is  an  entire  overthrow  or  destruction  of  the 
Buit,  so  that  it  is  quashed  and  ended,  {a)  But  in  the  sense  of 
courts  of  equity,  an  abatement  signifies  only  a  present  suspen- 
sion of  all  proceedings  in  the  suit,  from  the  want  of  proper 
parties  capable  of  proceeding  therein.  At  the  common  law,  a 
suit,  when  abated,  is  absolutely  dead.  While  in  equity,  a  suit 
when  abated,  is  in  a  state  of  suspended  animation ;.  and  it  may 
be  revived,  (b) 

"Where  a  suit  abates  by  death  or  marriage,  the  proper  means 
of  restoring  vitality  to  the  cause  is  by  bill  of  revivor  by  or 
against  the  person  who  comes  in  in  the  same  right  of  the 
original  party,  (c) 

(a)  3  Black.  Com.  168 ;  Putnam  vs.  Putnam,  4  Pick.  139  ;  see  Origgs  vs. 
Qear,  3  Gilm.  2. 

(6)  Story's  Eq.  PI.  §  328,  329,  349,  354 ;  Bowie  vs.  Minter,  2  Ala.  406 ; 
Cullom  vs.  Batre,  2  Ala.  415. 

(c)    Bowie  vs.  Minter,  2  Ala.  406  ;  see  Payton  vs.  McDowell,  3  Dana,  314 ; 
Holder  vs.  Mount,  2  J.  J.  Marsh.  187. 
15 


226  BILL   OF   REVIVOK. 

When  Proper  —  Before  Decree. 


SECTION  II. 
WHEN    PEOPEK. 

Before  decree. — Formerly  the  death  or  marriage  of  one  of 
the  original  parties  to  the  suit  was  the  most  common,  if  not 
the  only  cause  of  abatement  in  a  suit  in  equity.  As  the  inter- 
est of  the  complainant  usually  extended  to  the  whole  suit, 
therefore,  according  to  the  English  rule,  upon  the  death  of  the 
complainant,  or  the  marriage  of  a  female  complainant,  all  pro- 
ceedings became  abated,  {d)  Upon  the  death  of  a  defendant, 
likewise,  all  proceedings  become  abated  as  to  that  defendant,  {e) 
But  upon  the  marriage  of  a  female  defendant  the  proceedings 
did  not  abate,  although  her  husband  ought  to  be  named  in 
the  subsequent  proceedings.  (/") 

The  general  rule  in  relation  to  the  abatement  of  suits  in 
equity,  upon  the  death  of  parties  or  the  marriage  of  a  feme 
sole  complainant  or  defendant  before  a  final  decree,  no  longer 
prevails  in  Illinois  and  many  other  states.  For  it  is  provided 
by  statute  that  representatives  of  deceased  parties,  and  the 
husband,  in  case  of  the  marriage  of  &,  feme  sole,  may  be  made 
parties  by  a  suggestion  of  the  death  or  marriage,  as  the  case 
may  be,  upon  the  records  of  the  court,  when  the  cause  will 
proceed  as  in  other  cases,  [g)  A  bill  of  revivor  before  a  final 
decree  would  seem  now  to  be  seldom  necessary. 

A  bill  of  revivor  against  a  posthumous  child,  not  a  party  to 
a  suit,  cannot  be  filed  so  as  to  divest  his  title  nunc  pro  tunc,  (h) 

For  a  full  investigation  of  the  natiire,  purpose  and  scope 
of  a  bill  of  revivor,  the  attention  of  the  student  is  directed  to 

d)  Mitf.  Eq.  PI.  57 ;  Story's  Eq.  PI.  §  354  ;  Coop.  Eq.  PL  63  ;  Spencer  vs. 
Wray,  1  Vern.  463 ;  Anon.  3  Atk.  485,  486  ;  NicJiol  vs.  Boosefelt,  3  Johns. 
Ch.  60. 

(e)  Story's  Eq.  PL  ^  354  ;  Coop.  Eq.  PL  63  ;  Thompson  vs.  Dudley,  3  Edw. 
Ch.  137. 

(/)  Mitf.  Eq.  PL  58;  Gilb.  For.  Rom.  174,  177;  Wyatt  Pr.  Reg.  90-92'; 
Story's  Eq.  PL  §  354. 

{g)    Rev.  Stat.  (1874)  97;  Rev.  Stat.  (1877)  94. 

{h)    McConnel  vs.  Smith,  23  lU.  611. 


BILL   OF   REVIVOR.  32? 

When  Proper  —  After  Decree. 

the  works  on  chancery  pleading  referred  to  in  the  note  be- 
low, {i) 

After  decree. — The  general  rule  is  strict,  that  befor^  decree 
the  defendant  cannot  revive ;  but  this  rule  does  not  hold  aftei 
a  decree,  because  then  the  rights  of  the  parties  are  fixed,  and 
the  complainant  and  defendant  are  equally  entitled  to  the 
benefit  of  it.  {j)  After  a  decree  to  account,  either  party  may 
revive,  iji) 

It  was  laid  down  as  a  rule  by  Lord  Hardwicke,  that  a  de- 
fendant can  revive  only  in  one  instance,  and  that  is  after  a 
decree  to  account,  for  in  that  case  both  parties  are  actors.  (Z) 
But  the  principle  has  been,  by  subsequent  decisions,  extended 
to  every  case  in  which  the  defendant  can  derive  a  benefit  from 
the  further  proceedings,  (wi) 

The  complainant  has  a  right  to  revive  in  the  first  instance , 
and  the  defendant  cannot  reviye  except  upon  default  of  the 
complainant  to  do  so.  (^)  But  in  a  case  where  both  parties 
have  a  right  to  insist  that  the  suit  shall  be  revived,  if  the  com- 
plainant does  not  revive  it  within  a  reasonable  time,  the 
defendant  may  do  so.  {p) 

If  an  abatement  occurs  by  the  death  of  a  defendant,  the  suit 
may  be  revived  at  the  instance  of  his  representatives,  {jp)  pro- 
vided they  have  an  interest,  {q) 

{%)  Story's  Eq.  PI.  §  354-387  ;  Mitf .  Eq.  PI.  by  Jeremy,  98 ;  2  Barb.  Ch. 
Pr.  5-58  ;  Barton's  Suit  inEq.  129-132  ;  Hunter's  Suit  in  Eq.  126  ;  Welford's 
Eq.  PI.  207-216. 

{j)  Lord  Red.  79 ;  Rogers  vs.  Paterson,  4  Paige,  Cb.  R.  409  ;  Anon.  3  Atk. 
691 ;  Souillard  vs.  Dias,  9  Paige,  Ch.  R.  393. 

Qc)  Story's  Eq.  PI.  §  372;  Coop.  Eq.  PI.  68  ;  Anon.  3  Atk.  693 ;  Devaynea 
vs.  Morris,  1  Mylne  &  Craig,  213  ;  Mitf.  Eq.  PI.  79. 

{I)    Id.  lb. 

(m)  Id.;  Williams  vs.  Cooke.  10  Ves.  R.  406. 

(ti)  Horwood  vs.  Schmedes,  12  Ves.  311 ;  Anderson  xb.  White,  10  Paige,  Ch. 
R.  575 ;  Pell  vs.  Mliot,  Hopk.  Ch.  R.  86. 

(p)    Leggett  vs.  Dubois,  2  Paige,  Ch.  211. 

(p)  Williams  vs.  CooTce,  10  Ves.  401,  406, 

iq)  Much  vs.  LordWinchelsea,  1  Eq.  Ca.  Ab.  2;  Anderson  vs.  White,  10 
Paige,  Ch.  R.  575. 


228  BILL   OF  EEVIVOE. 

Against  Whom  to  be  Filed  —  Before  Decree. 

Where  the  object  of  the  revivor  is  not  to  continue  the  suit, 
but  merely  to  put  an  end  to  an  injunction,  and  to  be  allowed 
to  proceed  at  law,  a  bill  of  revivor  bj  the  defendant  will  be 
liable  to  a  demurrer,  (r)  The  defendant  must  proceed  to  get 
rid  of  the  injunction  by  moving  that  the  complainant,  or  his 
representatives,  revive  the  suit  within  a  reasonable  time,  or  that 
the  injunction  be  dissolved,  (s) 

If  some  of  the  complainants  entitled  to  file  a  bill  of  revivor, 
refuse  to  join  in  it,  they  may  be  made  parties  defendant,  {t) 

Two  parties  claiming  separately  the  same  estate,  cannot 
jointly  revive  a  bill  in  relation  to  it.  {u) 


SECTION  III. 
AGAINST   WHOM   TO    BE   FILED. 

Before  decree. — If  the  abatement  has  been  caused  by  the 
death  or  marriage  of  a  sole  complainant,  and  the  suit  is  to  be 
continued  by  the  representatives  of  the  original  complainant, 
or  by  the  husband  and  wife,  all  the  defendants  to  the  original 
bill  must  be  parties  to  it.  {v)  And  so  they  must,  if  the  abate- 
ment has  been  caused  by  the  death  or  marriage  of  one  of  sev- 
eral complainants,  and  the  suit  is  continued  by  the  surviving 
complainants,  and  the  representatives  of  the  deceased  com- 
plainant, or  by  husband  and  wife,  in  conjunction  with  the  other 
complainants.  If  the  suit  is  continued  either  by  the  surviving 
complainants  alone,  or  by  the  representatives  of  the  deceased 
complainant,  the  representatives  of  the  deceased  complainant 
in  the  one  case,  or  the  surviving  complainants  in  the  other, 
must  be  made  defendants  to  the  bill  of  revivor,  in  conjunction 
with  the  original  defendants,  {w)    Thus  if  one  of  several  ten- 

(r)    Horwood  vs.  Schmedes,  12  Ves.  311. 
(s)    Leggett  vs.  Dubois,  2  Paige,  Ch.  E.  211. 

(0    Welf.  Eq.  PI.  210 ;  2  Barb.  Ch.  Pr.  42 ;   Finch  vs.  Lord  WincMsea, 
1  Eq.  Ca.  Abr.  2,  p.  17 ;  Story's  Eq.  PI.  §  245,  246. 
(u)  Burrows  vs.  Taylor,  Wright,  600. 

(tj)    2  Barb.  Ch.  Pr.  44  ;  3  Dan.  210 ;  see  Auxbury  vs.  Mncham,  1  Vern.  308» 
(tc)  Auxbury  vs.  Mncham,  1  Vern.  308. 


BILL   OF   EEVIVOK.  229 

Against  Whom  to  be  Filed  —  After  Decree. 

ants  in  common,  complainants,  dies,  and  a  bill  of  revivor  is 
filed  by  his  representatives,  the  survivor,  if  not  a  co-complain- 
ant, must  be  a  defendant,  (x) 

Where  the  abatement  is  caused  by  the  death  of  one  of  sev- 
eral defendants,  and  the  suit  is  revived  by  the  complainant  in 
the  original  suit,  it  is  only  necessary,  in  a  simple  bill  of  re- 
vivor, to  bring  the  representatives  of  the  deceased  before  the 
court,  without  making  the  surviving  defendants  j)arties.  {y) 

These  suggestions  would  seem  unnecessary,  since  the  statute 
has  changed  the  English  rule,  and  provides  that  an  abatement, 
as  we  have  seen,  does  not  occur  upon  the  death  or  marriage  of 
parties,  (s) 

Where  filed  after  decree. — "Where  a  bill  of  revivor  is  filed 
after  decree,  all  persons  interested  in  carrying  the  decree  into 
efiect  must  be  made  parties  to  the  bill  of  revivor.  The  bill, 
however,  will  not  be  liable  to  demurrer  for  want  of  a  party 
who  was  not  before  the  court  at  the  time  of  the  abatement, 
although  the  suit  may  have  been  imperfect  for  want  of  such 
party ;  for  it  is  not  the  oSice  of  a  bill  of  revivor  to  correct 
such  imperfection,  {a) 

Upon  a  bill  for  an  account  and  distribution  of  an  estate, 
if  one  of  the  distributees  dies  pending  the  suit,  it  must  be 
revived  against  his  personal  representatives,  and  not  against 
his  next  of  kin.  (b) 

{x)   Fallowes  vs.  Williamson,  11  Yes.  306. 

{y)  Fanners'  Loan  and  Trust  Co.  vs.  Seymour,  9  Paige,  Ch.  R.  538;  3 
Dan.  211;  2  Barb.  Ch.  Pr.  44. 

(z)    Ptev.  Stat.  (1874)  97;  Rev.  Stat.  (1877)  94. 

[a]  Metcalfe  vs.  Metcalfe,  1  Keen,  74;  2  Barb.  Ch.  Pr.  45;  Humphreys  va. 
Hollis,  Jacoi),  73. 

{b)    Jenkins  vs.  Freyer,  4  Paige,  Ch.  47. 


230  BILL   OF  EEVIVOR. 


Frame  of  Bill  — Form  of  Bill. 


SECTION  IV. 
FKAME    OF    BILL. 

Must  pursue  original  hill. — The  bill  must  pursue  the 
original  bill ;  it  must  state  who  were  the  complainants  and 
defendants  to  it,  the  proceedings  thereon,  the  abatement,  the 
prayer  or  its  object,  and  show  the  title  of  the  complainant  to 
revive,  (c)  It  is  also  necessary  to  state  so  much  new  matter, 
and  no  more,  as  is  requisite  to  show  how  the  complainant 
becomes  entitled  to  revive,  and  to  charge,  that  the  cause  ought 
to  be  revived,  and  stand  in  the  same  condition  with  i-espect  to 
the  parties  to  the  original  bill,  as  it  was  at  the  time  when  the 
abatement  occurred ;  and  it  must  pray  that  the  suit  may  be 
revived  accordingly,  {d) 

The  58th  rule  for  practice  in  the  courts  of  equity  of  the 
United  States,  revised  in  1870,  provides  that,  "It  shall  not  be 
necessary,  in  any  bill  of  revivor,  or  supplemental  bill,  to  set 
forth  any  of  the  statements  in  the  original  suit,  unless  the 
special  circumstances  of  the  case  may  require  it."  The  49th 
of  the  English  orders,  promulgated  in  JL841,  is  to  the  same 
effect,  (e)  But  this  rule  does  not  dispense  with  the  necessity 
of  stating  so  much  of  the  pleadings  in  the  original  suit  as  is 
sufficient  to  show  the  title  of  the  complainant,  as  against  the 
defendant,  to  revive  the  suit,  {f) 

No.  91.     Bill  of  eevivob-  before  decree. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Tour  orator,  E.  F.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  one  A.  B.,  late  of,  etc.,  but  now  deceased, 

(c)  2  Barb.  Ch.  Pr.  46  ;  Story's  Eq.  PI.  §  420,  636-647  ;  Mitf .  Eq.  PI.  76 ; 
Prac.  Reg.  91 ;  Phelps  vs.  Sproule,  4  Sim.  318  ;  Vigers  vs.  Lord  Aiulley,  9  Sim. 
72 ;  Coop.  Eq.  PI.  70 ;  Douglas  vs.  Sherman,  2  Paige,  Ch.  R.  358 ;  Humphreys 
vs.  Incledon,  1  P.  Wms.  752. 

(d)  Story's  Eq.  PI.  §  374. 

(e)  Story's  Eq.  PI.  §  374. 

-  (/)  Griffith  vs.  Ricketts,  3  Hare,  476. 


BILL   OF  EEVIVOE.  231 

Form  of  Bills. 

exhibited  his  bill  of  complaint,  in  this  honorable  court,  against 
C.  D.,  of,  etc.,  as  defendant  thereto,  stating  as  therein  stated, 
and  praying  that,  etc.  {Here  insert  the  suhstance  of  the  prayer 
of  the  original  hill.)  That  process  was  duly  issued  against  the 
said  C.  D.,  who  appeared  and  put  in  his  answer  to  the  said  bill, 
to  which  the  said  A.  B.  put  in  his  replication  ;  and,  afterwards, 
depositions  in  said  cause  were  taken  by  both  parties.  That 
afterwards  the  said  cause  was  referred  to  the  master  in  chan- 
cery, of  this  court,  to  report  thereupon,  and  that  some  proceed- 
ings have  been  had  before  the  said  master,  but  no  general  report 
has  yet  been  made  in  said  cause ;  and  that  the  said  A.  B.,  on  or 
about  the day  of ,  A.  D.  18 — ,  departed  this  life  intes- 
tate ;  that  your  orator  has  been  duly  appointed  his  adminis- 
trator, and  has  thereby  become  his  legal  representative;  that 
the  said  suit  and  proceedings  having  become  abated  by  the 
death  of  the  said  A.  B.,  your  orator  is,  as  he  is  advised,  entitled, 
as  the  personal  representative  of  the  said  A.  B.,  to  have  the 
said  suit  and  proceedings  revived  against  the  said  C.  D.,  and  to 
have  the  said  cause  in  the  same  state  and  condition  as  the  same 
was  previously  to  the  death  of  the  said  C.  D. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  ecpiity ;  and  to  the  end  that 
the  said  C.  D.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut  not 
under  oath,  the  ansioer  under  oath  heing  herehy  'waived  ;  that 
the  said  suit  may  stand  revived,  and  be  in  the  same  plight  and 
condition  as  the  same  was  at  the  time  of  the  death  of  the  said 
A.  B. ;  and  that  your  orator  may  have  such  other  and  fortlier 
relief  in  the  premises  as  equity  may  require,  and  to  your  honor 
shall  seem  meet. 

May  it  please  j^our  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sheriff  of  the  said  county  of , 

commanding  him  that  he  summon  the  defendant  C.  D.  to  ap- 
pear before  the  said  court,  on  the  tirst  day  of  the  next term 

thereof,  to  be  held  at  the  court  house  in ,  in  the  count}^  of 

aforesaid ;  then  and  there  to  answer  this  bill,  etc. 

No.  92.     Bill  op  revivor  after  decree  —  against  the  sur- 
mving  executor  of  one  of  the  defendants  since  deceased. 

To  the  Honorable ,  Judge  of  the  ■ court  of  the  county 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor  that  on,  etc.,  your  orator  exhibited  his  bill  of  complaint, 


232  BILL   OF   REVIVOR. 

Form  of  Bills. 

in  this  honorable  court,  against  C.  D.  and  E.  D.,  his  wife,  of, 
etc.,  as  defendants  thereto,  stating  as  therein  stated,  and  pray- 
ing that,  etc.  {Here  insert  the  substance  of  the  prayer  of  the 
original  hill.)     That  process  was  duly  served  upon  the  said  C. 

D.  and  E.  D.,  his  wife  ;  and  that  they  appeared  and  put  in  their 
answers  to  said  bill ;  to  which  your  orator  put  in  his  replica- 
tion ;  and  afterwards,  on,  etc.,  the  said  cause  came  on  to  be 
heard  before  this  honorable  court,  when  it  was  ordered,  adjudged 
and  decreed,  as  follows:  {Here  set  out  the  decree.) 

Your  orator  further  represents  that  before  any  further  or 
other  proceedings  were  had  in  said  cause,  on,  etc.,  the  said 
C.  D.  departed  this  life,  having  first  duly  made  and  published 
his  last  will  and  testament  in  writing,  dated  on,  etc.,  and 
thereby  appointed  his  said  wife,  E.  D.,  and  the  defendant, 

E.  F.,  executrix  and  executor  thereof,  who  duly  proved  the 
said  will  in  the  proper  court,  and  took  upon  themselves  the 
burden  of  the  execution  thereof;  and  the  said  E.  D.  has  since 
also  departed  this  life,  leaving  the  said  defendant,  E.  F.,  her 
surviving,  and  who  is  now  the  sole  personal  representative  of 
the  said  C.  D.,  deceased,  and  as  such  entitled  to  the  principal 

sum  of dollars,  and  interest  due  from  the  said  G.  H.  to 

the  said  C.  D.,  and  secured  by  way  of  mortgage  upon  his,  the 
said  G.  H.'s,  share  of  the  said  estate  and  premises  in  the  plead- 
ings mentioned ;  and  the  said  suit  and  proceedings  having 
become  abated  by  the  death  of  the  said  C.  D.,  your  orator  is 
advised  that  he  is  entitled  to  have  the  same  revived  against 
the  said  E.  F.  as  his  surviving  executor. 

Forasmuch,  therefore,  as  youi-  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  E.  F.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut 
not  under  oath,  the  answer  binder  oath  heirig  hereby  waived, 
that  the  said  suit  and  proceedings  may  stand  and  be  revived 
against  the  said  E.  F.,  and  be  in  the  same  plight  and  condition 
as  the  same  were  in  at  the  time  of  the  abatement  thereof;  and 
that  your  orator  may  have  the  benefit  thereof ;  and  that  your 
orator  may  have  such  other  and  further  relief  in  the  premises 
as  equity  may  require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  j^rocess  as  in  No.  91 
—  the  last  form.) 


BILL   OF   REVIVOR  233 

Defenses  to  —  Demurrer — Plea. 

SECTION    V. 
DEFENSES   TO. 

If  the  defendant  desires  to  resist  the  objects  of  a  bill  of 
revivor,  he  may  demur,  plead  or  answer,  as  the  nature  of  the 
case  may  require. 

Demurrer. —  If  the  bill  does  not  show  a  sufficient  ground 
for  reviving  the  suit,  {g)  or  any  part  of  it,  (A)  either  by  or 
against  the  person  by  or  against  whom  it  is  instituted,  the 
defendant  may,  by  demurrer,  show  cause  against  the  revival.  {%) 

A  demurrer  will  lie  to  a  bill  of  revivor,  either  for  want  of 
privity  (^*)  or  for  want  of  interest,  (^)  or  for  some  imperfection 
in  the  frame  in  the  bill.  (Z) 

Plea. — Where  a  bill  of  revivor  is  brought  without  a  suffi- 
cient cause  to  revive,  and  this  fact  is  not  ajDparent  on  the  face 
of  the  bill,  the  defendant  may  plead  the  matter  necessary  to 
show  that  the  complainant  is  not  entitled  to  revive  the  suit 
against  him.  {m)  Or  if  the  complainant  is  not  entitled  to 
revive  the  suit  at  all,  though  a  title  is  stated  in  the  bill,  so  that 
the  defendant  cannot  demur,  the  objection  to  the  complainant's 
title  may  be  taken  by  way  of  plea,  {n)  So  if  a  person  entitled 
to  revive  a  suit  does  not  proceed  in  due  time,  he  may  be  barred 
by  the  statute  of 'limitations ;  which  may  be  pleaded  to  a  bill 
of  revivor  afterwards  filed,  (o)     Yet  where  the  bill  of  revivor 

(jg)   Harris  vs.  Polland,  3  P.  Wms.  848. 

{h)    1  Eq.  Ca.  Abr.  3,  4. 

{%)  University  Col.  vs.  Foxcroft,  2  Chan.  R.  244 ;  Nanny  vs.  Totty,  11 
Price,  117;  2  Barb.  Ch.  Pr.  50. 

( j)  2  Barb.  Ch.  Pr.  39,  40,  51 ;  Story's  Eq.  PI.  §  617-625  ;  Coop.  Eq.  PI.  64, 
76,  210,  211. 

{k)    Id.  lb.;  HoriPood  vs.  Schmrdes,  12  Ves.  311  ;  3  Dan.  218. 

(l)  lb. ;  Fallowes  vs.  Williamson,  11  Ves.  306  ;  Govld  vs.  Barnes,  1  Dick. 
133  ;  Metcalfe  vs.  Metcalfe,  1  Keen,  74  ;  Pendleton  vs.  Fay,  3  Paige,  Ch.  204. 

(to)  Mitf.  Eq.  PL  289 ;  2  Barb.  Ch.  Pr.  53 ;  Pendleton  vs.  Fay,  3  Paige, 
Ch.  R.  204. 

in)   Id.  lb. 

\o)    Mitf.  Eq.  PI.  290  ;  2  Barb.  Ch.  Pr.  53. 


234  BILL   OF  KEVIVOK. 

Defenses  to  —  Plea  —  Answer. 

is  after  a  decree  to  account,  it  is  not  within  or  barred  by  the 
statute  of  limitations,  {p)  If  a  suit  abates  before  decree,  the 
statute  of  limitations  is  a  good  plea  to  revivor,  {q) 

A  defendant  to  a  bill  of  revivor  cannot  support,  as  a  defense, 
a  plea  which  has  been  pleaded  by  the  original  defendant  and 
overruled,  (r) 

The  want  of  parties  may  be  pleaded  to  a  bill  of  revivor,  is) 

Answer. — It  seems  to  have  been  thought  that  a  defendant 
could  only  object  to  a  revivor  by  way  of  plea  or  demurrer,  (J) 
and  there  may  be  great  convenience  in  thus  making  the  objec- 
tion ;  for  if  the  defendant  objects  by  answer,  it  will  not  prevent 
the  order  to  revive,  {u)  and  the  point  can  only  be  determined 
by  bringing  the  cause  regularly  to  a  hearing ;  whereas  if  the 
objection  is  taken  by  plea  or  demurrer,  it  may,  in  general,  be 
immediately  determined  in  a  summary  way.  {v) 

But  although,  where  an  answer  is  called  for,  the  defendant 
may  by  it  object  to  the  revivor,  yet  if  it  be  a  mere  bill  of 
revivor,  in  which  the  question  between  the  parties  is  simply  as 
to  the  right  to  revive,  an  answer,  unless  required  by  the  bill, 
is  unnecessary,  {w) 

Where  an  answer  is  required,  it  must  be  confined  to  such 
matters  as  are  called  for  by  the  bill,  or  which  would  be  mate- 
rial to  the  defense,  with  reference  to  the  order  made  upon  it. 
Upon  this  ground  it  has  been  held  that  where  a  defendant  to  a 
bill  of  revivor  inserted  in  his  answer  a  variety  of  matters 

{p)  Hollingshead's  Case,  1  P.  Wms.  473;  Litton'' s  Case,  Gary,  8;  Hovenden 
vs.  Lord  Annesley,  2  Sch.  &  lisf .  607. 

(q)  Welf.  Eq.  PL  218;  Comber's  Case,  1  P.  Wms.  766;  Wilkinson  vs. 
Lovell,  2  Dick.  601 ;  Hercy  vs.  Dinwoody.  2  Ves.  Jr.  91 ;  Egremont  vs.  Hamil- 
ton, 1  B.  &  Beat.  524 ;  see  Barry  vs.  Jenkins,  1  Mylne  &  Craig,  118  ;  Murray 
vs.  E.  L  Co.  5  Barn.  &  Aid.  204;  Story's  Eq.  PI.  ^410. 

(r)    Samanda  vs.  Purtado,  3  Bro.  C.  C.  70  ;  2  Barb.  Ch.  Pr.  53. 

(s)  Fallowes  vs.  Williamson,  11  Ves.  306;  Beames  on  Pleas,  294;  Coop. 
Eq.  PI.  303. 

{t)    Harris  vs.  Follard,  3  P.  Wms.  348. 

lu)  2  Barb.  Ch.  Pr.  50,  54 ;  Nanny  vs.  Totty,  11  Price,  J17 :  Day  vs. 
Potter,  9  Paige,  Cb.  R.  645  ;  Le^cis  vs.  Bridgman,  2  Sim.  465. 

(u)    Mitf.  Eq.  PI.  289  ;  2  Barb.  Ch.  Pr.  54. 

(«j)  3  Dan.  320  ;  2  Barb.  Ch.  Pr.  54. 


BILL   OF  KEVIVOB.  235 

Defenses  to  —  Answer  —  Replication. 

which,  if  stated  in  answer  to  the  original  bill,  might  have  been 
a  good  defense  to  that  bill,  but  was  not  relevant  to  the  ques- 
tion of  revivor,  the  answer  was  to  that  extent  impertinent,  (a?) 
And  so,  where  the  answer  set  out  a  detailed  account  of  the 
proceedings  which  had  taken  place  in  the  suit,  for  the  purpose 
of  objecting  to  them  as  irregular  and  oppressive,  and  it  was 
insisted  that  some  of  the  orders  w^hich  had  been  made  in  the 
cause  ought  to  be  set  aside,  and  that  money  which  had  been 
paid  out  of  court  under  them  should  be  brought  back :  it  was 
held,  upon  exceptions  to  the  master's  report,  upon  a  reference 
for  impertinence,  that  such  statements  in  the  answer  were  im- 
pertinent. (?/) 

An  answer  to  a  bill  of  revivor  is  liable  to  exceptions  for 
impertinence  and  insufficiency,  the  same  as  an  answer  to  an 
original  bill.  But  exceptions  must  be  taken  before  the  com- 
plainant proceeds  to  revive  the  suit,  or  they  will  be  considered 
as  waived,  (s) 

The  defendant  may,  by  his  answer,  consent  that  the  suit  be 
revived.  In  that  case  the  complainant  may  enter  an  order  of 
course  for  the  revival  of  the  suit,  (a) 

The  answer  of  a  defendant  to  a  bill  of  revivor  cannot  dispute 
the  merits  of  the  decree,  {h) 

SECTION  VI. 

REPLICATION. 

If  the  answer  to  the  l)ill  of  revivor  does  not  admit  the 
complainant's  title  to  revive,  or  states  any  circumstances  which 
the  complainant  is  desirous  of  controverting,  it  must,  if  the 
abatement  has  occurred  after  decree,  or  after  issue  joined  in  the 
original  suit,  be  replied  to ;  after  which,  the  proceedings  upon 
it  will  be  the  same  as  upon  an  original  bill,  [c) 

(x)  Nanny  vs.  Toity,  11  Price,  117. 

iy)  Wagstaff  vs.  Bryan,  1  Paiss.  &  My.  28. 

(z)  2  Barb.  Ch.  Pr.  54,  55  ;  Gilb.  For.  Rom.  180. 

(a)  Seaton  on  Decrees,  384. 

(6)  Arnold  vs.  Styles,  2  Blackf.  391. 

(c)  1  Smith,  523 ;  2  Barb.  Ch.  Pr.  55. 


236  BILL   OF   EEVIVOR. 

Order  to  Revive  —  Form  of  Order. 

If  the  bill  of  revivor  is  filed  before  the  decree,  or  before  issue 
joined  in  the  original  cause,  a  separate  replication  will  be 
necessary,  {d) 

SECTION  VII. 
OKDER  TO  REVIVE. 

If  the  defendant  fails  to  appear  and  answer,  the  bill  may  be 
taken  as  confessed,  when  an  order  of  course  may  be  entered 
that  the  suit  stand  revived,  {e)  So  if  the  defendant,  by  his 
answer,  consents  to  a  revival  of  the  suit.  {/) 

iVo.  93.     Order  for  revivor. 

{Caption,  and  title  of  cause  as  in  JSfo.  79,  ante,  page  198.) 

This  cause  coming  on  to  be  heard  this  day,  and  it  appearing 
to  the  court  that  on,  etc.,  the  complainant  exhibited  his  bill  in 
this  court,  against  C.  D.  and  E.  D.,  his  wife,  to  be  relieved  touch- 
ing the  several  matters  therein  contained ;  that  the  said  C.  D. 
and  E.  D.  appeared  and  put  in  their  answers  to  said  bill,  to 
which  the  complainant  filed  a  replication ;  and  that  afterwards, 
on,  etc.,  the  said  cause  came  on  to  be  heard  in  this  court,  when  it 
was  ordered,  adjudged  and  decreed,  that,  etc.,  {Here  set  out  the 
decree)  that  before  any  further  proceedings  were  had  in  said 
cause,  the  said  C.  D.  departed  this  life,  having  first  duly  made 
his  will,  thereof  appointed  the  said  E.  D.,  his  wife,  and  the  said 
E.  F.,  executrix  and  executor,  who  duly  proved  the  same  ;  and 
that  the  said  E.  D.  has  since  also  departed  this  life,  leaving  the 
defendant,  E.  F.,  her  surviving,  as  the  sole  personal  represent- 
ative of  the  said  C.  D.,  deceased ;  and  that  the  said  suit  and 
proceedings  abated  by  the  death  of  the  said  C.  D.,  that  the 
complainant  has  exhibited  his  bill  of  revivor  in  this  court 
against  the  defendant,  E.  F.;  and  the  defendant  having  been  duly 
served  with  the  process  of  summons  of  this  court,  more  than 
ten  days  prior  to  the  present  term,  and  having  failed  to  appear 
and  put  in  his  answer,  it  is  ordered  that  the  said  suit  and  pro- 
ceedings do  stand  revived  against  the  said  E.  F.,  and  be  in  the 
same  plight  and  condition  they  were  in  at  the  time  of  the  death 
of  the  said  C.  D. 

(cf)    Golton  vs.  Earl  of  Carlisle,  5  Mad.  427. 
(e)     Seaton  on  Decrees,  384. 
(/)  Id.  2  Barb.  Ch.  Pr.  50. 


BILL   OF  EEVIVOR.  237 

Hearing. 


SECTION  VIII. 
HEAKING. 

The  necessity  for  bringing  a  bill  of  revivor  to  a  hearing  de- 
pends iij)on  whether  the  object  of  such  bill  has  been  accomplished 
by  the  order  to  revive.  If  it  merely  prays  that  the  suit  may  be 
revived,  a  hearing  will  be  unnecessary,  unless  an  answer  has 
been  put  in  denying  the  complainant's  right  to  revive,  as  the 
object  will  be  completely  effected  by  the  order  to  revive ;  and 
if  under  such  circumstances  the  revivor  suit  is  brought  on  for 
hearing,  the  complainant  will  have  to  pay  the  costs.  This  will 
apply  equally  to  cases  in  which  the  bill  of  revivor  is  filed  by 
the  complainant,  or  those  who  represent  him,  or  after  decree  by 
a  defendant,  or  those  who  represent  him.  The  mere  order  to 
revive  will,  in  such  case,  be  effectual  against  both  complain- 
ant and  co-defendants,  (g) 

In  the  case  of  an  answer  contesting  the  right  to  revive,  the 
cause  must  proceed  upon  the  bill  of  revivor,  in  the  same  man- 
ner as  upon  other  bills,  and  the  matters  of  fact  must  be  ascer- 
tained, and  those  of  law  determined  as  usual.  When  it  is  ripe 
for  hearing,  it  is  brought  on  in  the  usual  mode,  notwithstand- 
ing an  order  to  revive  has  been  obtained  ;  upon  which  the  com- 
plainant must  establish  his  right  to  revive,  or  he  will  fail  in 
the  suit.  If  the  decision  of  the  court  is  in  favor  of  the  bill, 
the  order  pronounced  will  be  that  the  original  suit  stands 
revived,  and  be  carried  on  and  prosecuted  between  the  parties 
to  the  original  suit,  in  like  manner  as  between  the  parties  to 
the  original  suit.  (A) 

Whenever  the  bill  contains  supplemental  matter,  as  well  as 
matter  of  revivor,  a  hearing  must  be  had  ;  and  in  such  case,  the 
bill  of  revivor  must  be  set  down  for  hearing  as  well  against  the 

(g)  3  Dan.  221 ;  Pi'uen  vs.  Lunn,  5  Russ.  3 ;  Day  vs.  Potter,  9  Paige,  Ch. 
R.  645 ;  2  Barb.  Ch.  Pr.  56. 

Qi)  1  Hoff.  Pr.  383  ;  Dmj  vs.  Potter,  9  Paige,  Ch.  R.  645 ;  Seaton  ou 
Decrees,  385 ;  Harris  vs.  Pollard,  3  P.  Wms.  R.  348 ;  2  Barb.  Ch.  Pr,  56  ; 
Story's  Eq.  PI.  §  374 ;  Bettes  vs.  Dana,  2  Sumner,  R.  383. 


238  BILL   OF   EEVIVOK. 

Heariug  —  Effect  of  Revivor. 

party  to  the  revivor  as  against  the  party  to  the  supplemental 
matter,  (t) 

Where  the  decree  in  the  original  suit  contains  a  specific  direc- 
tion, as  that  the  defendant  shall  pay  a  certain  sum  of  money, 
that  direction  cannot  be  carried  into  execution  by  the  mere 
order  to  revive ;  but  a  decree  must  be  made  in  the  revived 
suit  for  that  purpose,  {j ) 

If  the  bill  of  revivor  is  filed  before  the  decree,  it  may,  if  the 
original  cause  has  not  been  heard,  be  heard  together  with  it ; 
but  if  the  original  cause  has  already  been  set  down,  it  jaust  be 
heard  separately ;  and  in  respect  to  all  fees  and  charges,  it  is 
considered  as  a  separate  cause  until  the  decree,  {k) 

If  there  has  been  a  decree  in  the  original  cause,  the  bill  of 
revivor  must,  if  necessary  to  be  heard,  be  heard  separately ;  or 
it  may  be  directed  to  come  on  for  hearing  with  the  cause  for 
further  directions,  {l) 

SECTION   IX. 

EFFECT    OF    REVIVOK. 

A  bill  of  revivor  merely  substantiates  the  suit  and  brings 
before  the  court  the  parties  necessary  to  see  to  the  execution 
of  the  decree,  and  to  be  the  objects  of  its  operation,  rather 
than  to  litigate  the  claims  made  by  the  several  parties  in  the 
original  pleadings,  except  so  far  as  they  remain  undecided,  (m) 

Where  the  abatement  of  the  suit  is  total,  an  order  to  revive 
places  the  suit  and  all  the  proceedings  in  it,  in  precisely  the 
same  plight,  state  and  condition  that  the  same  were  in  at  the 
time  when  the  abatement  took  place,  {n)  And  the  new  com- 
plainant may  take  the  same  proceedings  in  the  cause  that  the 

(i)  2  Barb.  Ch.  Pr.  56,  57 ;  Lake  vs.  Austicick,  4  Lond.  Jurist,  314 ;  Mitf. 
Eq.  PI.  76. 

(f)    Harries  vs.  Johnson,  3  Young  &  Coll.  583. 

(A)    1  Smith's  Pr.  523 ;  2  Barb.  Ch.  Pr.  57. 

(l)    3  Dan.  R.  223 ;  2  Barb.  Ch.  Pr.  57. 

(m)  2  Barb.  Ch.  Pr.  57  ;  Story's  Eq.  PI.  §  375 ;  Coop.  Eq.  PI.  71 ;  Bevaynea 
V8.  Morris,  1  Mylne  &  Craig,  213,  225. 

{n)   Oregson  vs.  Oswald,  1  Cox,  343. 


BILL  OF  REVIVOR.  239 

Effect  of  Revivor. 

original  complainant  might  have  taken.  Thus,  the  complain- 
ant in  a  revived  suit  may  amend  the  original  suit  in  the  same 
manner  that  the  original  complainant  might  have  done,  and 
may  have  an  attachment  against  the  defendant  for  not  answer- 
ing the  amended  bill,  (o)  So,  also,  the  new  complainant 
may  prosecute  process  of  contempt  against  the  defendant 
taking  it  up  where  it  left  off  at  the  abatement,  and  if  a  pro- 
cess has  been  issued  before  the  abatement,  it  will  be  revived 
by  the  order  to  revive  the  suit,  {p) 

But  the  case  is  otherwise  where  the  abatement  is  occasioned 
by.  the  death  of  the  defendant.  In  such  case,  the  process  being 
personal,  cannot  be  revived.  In  general,  however,  where 
an  abatement  is  occasioned  by  the  death  of  the  defendant,  the 
order  to  revive  against  his  representatives  will  place  the  suit 
as  fully  in  the  same  position,  with  regard  to  such  representar- 
tives,  as  can  be  done  with  reference  to  the  change  of  the 
individual  before  the  court,  (g) 

Where  there  is  a  cross-bill,  a  revivor  of  the  original  suit  will 
not  have  the  effect  to  revive  the  cross-suit ;  but  there  must  be 
a  revivor  in  each  cause,  {r) 

((?)    Mitf .  Eq.  PI.  78 ;  Phillips  vs.  DarU,  1  Dick.  98. 
Ip)  2  Barb.  Cli.  Pr.  58 ;  Hyde  vs.  Forster,  1  Dick.  R.  134. 
(g)    3  Dan.  237 ;  2  Barb.  Ch.  Pr.  58. 
(r)    Welf.  Eq.  PI.  220. 


CHAPTER   XVIII. 

BILLS    m    THE    NATURE    OF    BILLS    OF    EEVIVOK. 

Section  1.    Nattxre  and  Uses. 

2.  Parties  to. 

3.  Frame  of  Bill. 

4.  Defenses  to,  and  Proceedings  Upon. 

/' 

SECTION  I. 
NATURE    AND    USES. 

A  bill  of  revivor  properly  so  called  lies  only  in  cases  where 
a  death  or  marriage  intervenes.  In  each  of  these  cases  there 
is  no  other  fact  to  be  ascertained  than  whether  the  new  party 
brought  before  the  court  has  the  character  imputed  to  him. 
If  he  has,  the  revivor  is  of  course,  {a)  But  there  are  many 
cases  in  which  there  are  other  facts  which  may  be  brought 
into  litigation,  besides  the  mere  question  of  the  character  of 
the  new  party;  and  to  such  cases,  therefore,  the  simple  bill 
of  revivor  does  not  technically  apply.  Under  such  circum- 
stances an  original  bill,  in  the  nature  of  a  bill  of  revivor,  is 
the  appropriate  process  to  bring  those  facts  before  the  court, 
and  to  put  the  original  proceedings  again  in  motion,  and  to 
enable  the  new  party  to  have  the  benefit  of  the  former  pro- 
ceedings. (5) 

Thus  if  the  death  of  a  party,  whose  interest  is  not  deter- 
mined by  his  death,  is  attended  with  such  a  transmission  of  his 
interests,  that  the  title  to  it,  as  well  as  the  person  entitled,  may 
be  litigated  in  the  court  of  chancery,  as  in  the  case  of  a  devise 
of  a  real  estate,  the  suit  is  not  permitted  to  be  continued  by  a 
bill  of  revivor.  An  original  bill,  upon  which  the  title  may  be 
contested,  must  be  filed.     And  this  bill  will  have  so  far  the 

(a)    Coop.  Eq.  PL  64 ;  Story's  Eq.  PI.  §  377. 

(&)  2  Barb.  Cli.  Pr.  80-81 ;  Story's  Eq.  PI.  §  377 ;  Mitf.  Eq.  PI.  97  ;  AUor- 
ney  General  vs.  Foster,  2  Hare,  81,  93,  94. 


BILLS  IN  NATUKE  OF  BILLS  OF  EEVIVOR.    241 

Nature  and  Uses. 

effect  of  a  bill  of  revivor,  that  if  the  title  of  the  representa- 
tive substituted  by  the  act  of  the  deceased  party  is  established, 
the  same  benefit  may  be  had  of  the  proceedings  upon  the 
former  bill,  as  if  the  suit  had  been  continued  by  the  revivor,  (c) 

Where  all  the  parties  to  a  suit  have  died  subsequent  to  the 
striking  of  the  cause  from  the  docket,  the  pi'oper  practice  to 
bring  the  case  again  before  the  court,  is  by  a  bill  in  the  nature 
of  a  bill  of  revivor,  by  the  heirs  at  law  of  one  party  against 
the  heirs  at  law  of  the  other  party,  {d) 

The  distinction  between  bills  of  revivor,  and  bills  in  the 
nature  of  bills  of  revivor,  seems  to  be,  that  the  former,  in  case 
of  death,  are  founded  upon  mere  privity  of  blood  or  represen- 
tation by  operation  of  law  ;  the  latter  upon  privity  of  estate  or 
title  by  the  act  of  the  party,  {e)  In  the  former  case  nothing 
can  be  in  contest,  except  whether  the  party  be  the  heir  or  per- 
sonal representative ;  in  the  latter,  the  nature  and  operation  of 
the  whole  act,  by  which  the  privity  of  estate  or  title  is  created, 
is  open  to  controversy.  {/)  Thus,  for  example,  the  heir  may- 
be made  a  party  by  a  bill  of  revivor ;  for  his  title  is  by  mere 
operation  of  law.  But  the  devisee,  or  purchaser  of  the  com- 
plainant's interest,  must  come  in  by  a  bill  in  the  nature  of  a 
bill  of  revivor ;  for  he  comes  in  as  a  purchaser  under  the  testa- 
tor in  privity  of  estate  or  title,  which  may  be  disputed,  {g) 

The  bill  is  said  to  be  original,  merely  on  account  of  the  want 
of  that  privity  of  title  between  the  party  to  the  former  bill 
and  the  party  to  the  latter  bill,  although  claiming  the  same 
interest  which  would  have  permitted  the  continuance  of  the 
suit  by  a  bill  of  revivor.  (A)     Therefore  when  the  validity  of 

(c)  Story's  Eq.  PL  §  378;  Mitf.  Eq.  PI.  71,97;  Glare  vs.  WordeU,  SVern. 
548 ;  Jones  vs.  Jones,  3  Atk.  217  ;  Douglas  vs.  Sherman,  2  Paige,  Ch.  R.  358 ;. 
Slack  vs.  Wolcott,  3  Mason,  508. 

(d)  Welch  vs.  Lewis,  31  111.  446 ;  29  111.  535  ;  3  Dan.  Ch.  Pr.  1718. 

(e)  Wyatt,  Pr.  Eeg.  90 ;  Story's  Eq.  PI.  §  379. 

(/)  2  Barb.  Ch.  Pr.  81 ;  Story's  Eq.  PI.  §379 ;  Slack  vs.  WolcoU,  3  Mason's 
R.  508. 

[g)  Coop.  Eq.  PI.  63,  69,  77  ;  Gilb.  For.  Rom.  172 ;  Wyatt,  Pr.  Reg.  90 ; 
Douglas  vs.  Sherman,  2  Paige,  Ch.  R.  358 ;  Story's  Eq.  PI.  §  379 ;  Attorney 
General  vs.  Foster,  2  Hare,  R.  81,  93  ;  2  Barb.  Ch.  Pr.  83. 

Qi)    Mitf.  Eq.  PI.  97,  98 ;  Story's  Eq.  PI.  §  380. 
16 


242    BILLS  m  NATURE  OF  BILLS  OF  REVIVOR. 

Parties  to  —  Frame  of  Bill. 

the  alleged  transmission  of  interest  is  established,  the  party  to 
the  new  bill  will  be  equally  bound  by,  or  have  advantage  of, 
the  proceedings  on  the  original  bill,  as  if  there  had  been  such 
a  privity  between  him  and  the  party  to  the  original  bill,  claim- 
ing the  same  interest,  (i)  And  the  suit  is  considered  as  pend- 
ing from  the  filing  of  the  original  bill,  so  as  to  save  the  statute 
of  limitations,  to  have  the  advantage  of  compelling  the  defend- 
ant to  answer,  before  an  answer  can  be  compelled  to  a  cross- 
bill, and  to  have  every  other  advantage,  which  would  have 
attended  the  institution  by  the  original  bill,  if  it  could  have 
been  continued  by  a  bill  of  revivor  merely,  (j) 

SECTION  II. 

PARTIES  TO. 

Where  a  bill  in  the  nature  of  a  bill  of  revivor  is  filed  by  any 
one  who  was  not  a  party  to  the  original  suit,  either  as  the 
representative  of  a  deceased  party  or  otherwise,  all  of  the  other 
parties  to  such  original  suit,  who  have  any  interest  in  the  fur- 
ther proceedings  therein,  should  be  made  parties  to  such  bill, 
either  as  complainants  or  defendants,  (k) 

A  bill  of  this  nature  cannot  be  brought  except  by  some  per- 
son who  claims  in  privity  with  the  complainant  in  the  original 
bill.  {I) 

SECTION  III. 
FEAME    OF    BILL. 

An  original  bill  in  the  nature  of  a  bill  of  revivor,  should,  in 
general,  state  the  same  facts  as  in  a  bill  of  revivor.  It  should 
state  the  original  bill,  the  proceedings  upon  it,  the  abatement, 
and  the  manner  in  which  the  interest  of  the  party  deceased  has 

(i)    Story's  Eq.  PI.  §  380;  Mitf.  Eq.  PI.  97. 
(j)    Id. ;  Merrywcther  vs.  Mellich,  13  Ves.  IGl,  163. 
{k)    TTie,  Farmer's  Loan  &  T.  Go.  vs.  Seymour,  5  Paige,  Ch.  R.  538. 
(?)    Oldlia/m  vs.  Ehoral,  Coop.  Select  Cas.  27 ;  Rylandis  vs.  LatoudJie,  2 
Bligh,  585  ;  Tonkin  vs.  Lethhridge,  Coop.  R.  43  ;  2  Barb.  Ch.  Pr.  82. 


BILLS  IN  NATURE  OF  BILLS  OF  REVIVOR.    243 

""  Form  of  Bill. 

been  transmitted.  It  mnst  also  charge  the  validity  of  the 
transniission,  and  state  the  rights  which  have  accrued  by  it.  {tu) 
The  bill  should  also  pray  that  the  suit  may  be  revived,  and 
that  the  complainant  have  the  benefit  of  the  former  proceed- 
ings therein,  (n) 

No.  dlf..     Bill  in  the  nature  of  a  hill  of  revivor. 

To   the   Honorable  ,  Judge  of  the  Court  of  the 

County  of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  repi-esents  unto  your 
honor  that  on,  etc.,  one  E.  F.,  of,  etc.,  filed  his  bill  of  com- 
plaint in  this  honorable  court,  against  C.  D.,  of,  etc.,  thereby 
stating,  etc.,  {Here  set  forth  the  material  pa7'ts  of  the  hill, — suj)- 
posing  it  to  he  a  hill  for  specific  performo/nce^  and  praying,  etc., 
{Here  set  out  the  substance  of  the  prayer^  that  the  said  C.  D., 
being  served  with  process,  appeared  and  put  in  his  answer  to 
the  said  bill,  and  E.  F.,  the  complainant  therein,  replied  thereto, 
and  that  the  said  cause  being  at  issue,  witnesses  were  examined 
on  both  sides,  and  the  proofs  closed  ;  as  by  the  said  bill,  answer, 
replication  and  proceedings  now  remaining  as  of  record  in  this 
court,  reference  being  thereto  had,  will  more  fully  aj)pear. 

And  your  orator  further  represents,  that  before  any  further 
proceedings  were  had  in  the  said  suit,  and  on,  etc.,  he,  the  said 
E.  F.,  departed  this  life,  leaving  D.  F.,  the  other  defendant 
hereinafter  named,  his  son  and  only  heir,  him  surviving,  and 
having  pre\dously  made  and  published  his  last  will  and  testa- 
ment in  writing,  bearing  date  on,  etc.,  and  executed  and  attested 
so  as  to  pass  real  estate,  and  having  thereby  given  and  devised 
the  said  real  estate  so  contracted  to  be  purchased  by  him 
as  aforesaid,  to  your  orator,  his  heirs  and  assigns,  and  having 
appointed  your  orator  sole  executor  thereof,  as  in  and  by  said 
bill,  when  produced,  will  more  fully  appear. 

And  your  orator  further  represents  that  the  said  will  was  on, 

etc.,  duly  proved  by  your  orator,  before  the  — court,  of  the 

county  of ,  whereby  your  orator  became  the  legal  personal 

representative  of  the  said  E.  F.,  as  by  the  letters  testamentary 

issued  by  said court,  ready  to  be  produced  in  court,  will 

more  fully  appear. 

(m)  Mitf.  Eq.  PI.  97 ;  Phelps  vs.  Sproule,  4  Sim.  R.  318 ;  Story's  Eq.  PI. 
§386. 

(n)  2  Barb.  Cli.  Pr.  83;  2  Dan.  R.  230;  Van  Heyth.  Eq.  Drafts.  848; 
Barton's  Suit  in  Eq.  132. 


244    BILLS  IN  NATUKE  OF  BILLS  OF  REVIVOK. 

Form  of  Bill. 

Tour  orator  further  represents,  that  by  virtue  of  the  devise 
BO  made  to  your  orator  as  aforesaid,  he  is  entitled  to  stand  in 
the  place  of  the  said  E.  F.,  with  respect  to  the  said  contract  of, 
etc.,  and  to  have  the  same  specifically  performed,  and  to  have 
the  said  premises  conveyed,  by  the  said  C.  D.,  to  your  orator, 

upon  payment  of  the  said  sum  of dollars,  which  sum  your 

orator  hereby  offers  to  pay. 

And  your  orator  represents,  that  by  the  death  of  the  said  E. 
F.,  the  said  suit  and  proceedings  became  abated,  but  that  your 
orator  is,  as  he  is  advised,  entitled  to  have  the  same  revived 
against  the  said  C.  D.,  and  to  have  the  same  relief  against  him, 
as  the  said  E,  F.  would  be  entitled  to  if  he  were  still  living. 

And  your  orator  further  represents,  that  the  said  D.  F. 
sometimes,  though  without  any  ground,  questions  the  validity 
of  the  said  devise  to  your  orator,  and  is,  therefore,  as  your 
orator  is  advised,  a  necessary  party  to  this  suit. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  I),  and  D.  F.,  who  are  made  parties  defendant  to 
this  bill,  may  be  required  to  make  full  and  direct  answer  to  the 
same,  hid  not  on  oath,  the  answer  under  oath  heing  herehy 
waived ;  and  that  the  defendants  may,  if  they  can,  show  why 
the  said  suit  and  proceedings  should  not  be  revived,  and  your 
orator  have  the  relief  hereby  prayed ;  and  that  it  may  be  de- 
clared that  your  orator,  as  such  devisee  of  the  said  E.  F.  as  afore- 
said, is  entitled  to  revive  the  said  suit  and  proceedings  so  become 
abated  as  aforesaid,  and  to  have  the  benefit  thereof;  and  that 
the  said  suit  and  proceedings  may  be  decreed  to  stand  and  be 
revived  accordingly,  and  to  be  in  the  same  plight  and  con- 
dition as  they  were  in  at  the  time  of  the  said  abatement ;  and 
that  your  orator  may  have  the  same  relief  against  the  defend- 
ant, C.  D.,  as  the  said  E.  F.  would  be  entitled  to  if  he  were 
still  living ;  and,  if  necessary  for  that  purpose,  that  the  said 
will  of  the  said  E.  F.  may  be  established ;  and  that  your 
orator  may  have  such  other  and  farther  relief  in  the  premises 
as  equity  may  require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  for  summons  againsi 
C.  D.  and  D.  F.  as  in  No.  91,  ante,  page  230) 


BILLS  IN  NATURE  OF  BILLS  OF  REVIVOR.     245 

Defenses  to,  and  Proceedings  upon. 

SECTION  IV. 

DEFENSES    TO,    AND    PKOCEEDINGS    UPON 

Bills  in  the  nature  of  bills  of  revivor  are  liable  to  demurrers, 
pleas  or  answer,  on  the  same  ground  as  original  bills  and  bills 
of  revivor,  of  whose  nature  they  partake,  and  the  practice  as 
to  demurring,  pleading  to,  and  answering  them  is  the  same  in 
all  respects  as  the  practice  upon  original  bills,  (o) 

And  in  all  other  respects  the  practice  upon  bills  of  this 
nature  is  the  same  as  upon  original  bills,  and  they  must  be 
brought  on  for  hearing  in  the  same  manner  before  any  benefit 
can  be  derived  from  them ;  a  revivor  in  such  cases  being  only 
obtained  by  decree  and  not  by  an  order  to  revive,  as  in  the 
case  of  an  ordinary  bill  of  revivor,  (p) 

(o)    2  Barb.  Ch.  Pr.  83 ;  3  Dan.  R.  230. 
(jP)  3  Dan.  R.  230 ;  3  Barb.  Ch.  Pr.  84. 


CHAPTER  XIX. 

BILLS    OF    REVIVOR    AND    SUPPLEMENT. 

Nature  of^  and  when  proper. — A  bill  of  revivor  and  sup 
plement  is  a  mere  compound  of  a  supplemental  bill  and  a  bill 
of  revivor;  and  in  its  separate  parts  it  must  be  framed  and 
proceeded  upon  in  the  same  manner,  {a)  It  not  only  con- 
tinues a  suit  which  has  abated,  but  supplies  any  defects  in  the 
original  bill  arising  from  subsequent  events,  (b)  And  when- 
ever a  complainant  has  a  right  to  revive  a  suit,  he  may  add  to 
the  bill  of  revivor  such  supplemental  matter  as  is  proper  to  be 
addel.  (c) 

It  becomes  proper  where  not  only  an  abatement  has  taken 
place  in  a  suit,  but  defects  are  to  be  supplied,  or  new  events 
are  to  be  stated,  which  have  arisen  since  the  commencement 
of  the  suit.  Thus  if  a  suit  becomes  abated,  and  by  any  act 
besides  the  event  by  which  the  abatement  happens,  the  rights 
of  the  parties  are  affected,  as  by  a  settlement  or  a  devise, 
under  certain  circumstances,  although  a  bill  of  revivor  may 
continue  the  suit,  so  as  to  enable  the  parties  to  prosecute  it ; 
yet  to  bring  before  the  court  the  whole  matter  necessary  for 
its  consideration,  the  parties  must  by  supplemental  bill,  added 
to  and  made  part  of  the  bill  of  revivor,  show  the  settlement, 
or  devise,  or  other  act  by  which  their  rights  are  affected. 
And  in  the  same  manner,  if  any  other  event  which  occasions 
an  abatement  is  accompanied  or  followed  by  any  matter 
necessary  to  be  stated  to  the  court,  eitlier  to  show  the  rights 
of  the  parties,  or  to  obtain  the  full  benefit  of  the  suit,  beyond 
what  is  merely  necessary  to  show,  by  or  against  whom  the  cause 

{a)    Story's  Eq.  PI.  §  387  ;  Mitf.  Eq.  PI.  80. 

(&)  Westcott  vs.  Cady,  5  Johns.  Ch.  R.  343 ;  Pendleton  vs.  Fay,  3  Paige, 
Ch.  R.  204. 

(c)    Pendleton  vs.  Fay,  3  Paige,  Ch.  R.  204  ;  2  Barb.  Ch.  Pr.  88. 


I 


BILLS  OF  EEVIVOK  AND  SUPPLEMENT.        247 


Practice  upon  —  Form  of  Bill. 


is  to  be  revived,  that  matter  must  be  set  forth  by  way  of  supple- 
mental bill  added  to  the  bill  of  revivor,  {d) 

Practice  upon. — The  bill  of  revivor  and  supplement  are  each 
liable  to  the  same  description  of  defense  as  the  bills,  if  sepa- 
rate, would  be  subject  to,  {e)  and  are  to  be  framed  and  proceeded 
upon  in  the  same  manner  as  bills  of  revivor  and  supplemental 
bills. •(/")  If  matters  contained  in  the  bill  of  revivor  and  sup- 
plement are  irrelevant  or  improper,  the  defendant  may  avail 
himself  of  the  objection,  either  by  a  plea,  or  by  demurrer, 
or  by  exceptions  for  impertinence,  {g)  But  the  insertion  of 
supplemental  matter  in  a  bill  of  this  nature  will  not  authorize 
the  defendant  to  demur  to  the  whole  bill.  He  should  demur 
to  the  supplemental  matter  only.  (A) 

]^o.  95.     Bill  of  revivor  and  supplement. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  your  orator  exhibited  his  original  bill  of 
complaint  in  this  honorable  court  against  C.  D.,  of,  etc.,  there- 
by, etc.,  {Here  set  forth  so  inucli  of  the  1)111  and  prayer  as 
may  he  necessary f)  and  the  said  C.  D.,  being  duly  served  with 
process,  appeared  and  put  in  his  answer  to  said  bill,  and  your 
orator  having  replied  thereto,  witnesses  were  examined  in  said 
cause,  on  both  sides ;  as  by  the  said  pleadings  and  other  pro- 
ceedings in  the  said  cause,  now  remaining  as  of  record  in  this 
honorable  court,  reference  thereunto  being  had,  will  more  fully 
appear. 

And  your  orator  further  represents,  that  before  any  further 
proceedings  were  had  in  the  said  cause,  and  on,  etc.,  the  said 
C  D.  departed  this  life,  without  issue,  leaving  E.  F.,  of,  etc.,  a 
defendant  hereinafter  named,  his  heir  at  law  ;  and  the  said  suit, 

{6)  Story's  Eq.  PI.  §  387  ;  Coop.  Eq.  PI.  64;  Merrywether  vs.  Mellich,  13 
Ves.  161,108,  435;  Bampton  vs.  BirchaU,  1  Phillips,  568;  Manchester  vs. 
Matthewson,  2  R.  I.  416  ;  Bylaiids  vs.  Latouclw,  2  Bligh,  566. 

(e)     3  Dan.  Ch.  Pr.  232  ;  2  Barli.  Ch.  Pr.  89. 

(/)    Welf.  Eq.  PI.  222  ;  Will  Eq.  PI.  80  ;  Coop.  Eq.  PI.  84. 

{g)    Pendleton  vs.  Fay,  3  Paio-e.Ch.  R.  204. 

{h)    Randolph  vs.  Dickerson,  5  Paige,  Ch.  R.  517  ;  2  Barb.  Ch.  Pr.  89. 


248        BILLS  OF  REVIVOE  AND  SUPPLEMENT. 


Form  of  Bill. 


and  the  proceedings  therein  having  become  abated,  by  the 
death  of  the  said  C.  D.,  your  orator,  as  he  is  advised,  is  enti- 
tled to  have  the  same  revived  against  the  said  E.  F.,  as  the  heir 
of  the  said  C.  D.,  and  restored  to  the  same  condition  in  which 
they  were  at  the  time  of  his  death. 

And  your  orator,  by  way  of  supplement,  further  represents 
that  the  said  C.  D.,  in  his  lifetime,  duly  made  and  published 
his  last  will  and  testament  in  writing,  in  such  manner  as  is  by 
law  required  for  passing  real  estate,  bearing  date,  -etc.,  and 
thereby  devised  all  his  real  estate  to  G.  H.  and  L.  M.,  and  their 
heirs  forever ;  as  in  and  by  the  said  last  will  and  testament, 
reference  thereto  being  had,  will  more  fully  appear. 

And  3"our  orator  further  represents,  that  the  said  C.  D. 
departed  this  life  at  the  time  above  specified,  without  having 
altered  or  revoked  his  said  will ;  and  that  the  said  G.  H.  and 
L.  M.,  respectively  claim  to  be  interested  in  the  said  premises, 
by  virtue  of  the  said  will ;  and  therefore  your  orator  is,  as  he 
is  advised,  entitled  to  the  benefit  of  the  said  suit  against  them, 
as  being,  or  claiming  to  be  so  interested,  and  to  the  like  relief 
as  he  would  have  been  entitled  to  against  the  said  C  D.  if  he 
were  still  living;  and  the  said  E.  F.,  as  such  heir  at  law  as 
aforesaid,  at  times  disputes  the  validity  of  the  said  will. 

Forasmuch,  therefore,  as  your  orator  is  Mdthout  remedy  in  the 
premises,  except  in  a  court  of  equity ;  and  to  the  end  that  the 
said  E.  F.,  G.  F.  and  L.  M.,  who  are  made  parties  defendant 
to  this  bill,  may  be  required  to  make  full  and  direct  answer  to 
the  same,  hut  not  under  oath,  the  answer  under  oath  heing 
hereby  waived  •  and  .that  the  said  suit  and  proceedings  so 
abated  as  aforesaid,  may  stand  revived  against  the  said  E.  F. 
as  heir  at  la%v  as  aforesaid,  and  be  in  the  same  plight  and  con- 
dition in  which  they  were  at  the  time  of  the  death  of  the  said 
C.  D.,  or  that  the  said  E.  F.  may  show  good  cause  to  the  con- 
trary ;  and  that  your  orator  may  have  the  benefit  of  the  said 
suit  and  the  proceedings  therein  against  the  said  E.  F.,  G.  H. 
and  L.  M.,  who  claim  to  be  respectively  interested  as  aforesaid, 
and  such  relief  as,  if  the  said  C.  D.  were  still  living,  he  would 
be  entitled  to  against  him ;  and  that  your  orator  may  have 
such  other  and  further  relief  in  the  premises  as  equity  may 
require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.,  {Praying  process  as  in  JV^o. 
91,  ante,  jpage  230.) 


CHAPTER  XX. 

BILLS    OF    REVIEW. 

Section  1.  Nature  of,  and  When  Proper. 

2.  Parties  to. 

3.  Leave  to  File. 

4.  Within  What  Time  to  be  Brought. 

5.  FoRSi  OF  Bill. 

6.  Defenses  to. 


SECTION  I. 
NATIJKE    OF,  AND    WHEN    PKOPER. 

A  bill  of  review  is  in  the  nature  of  a  writ  of  error ;  and  its 
object  is  to  procure  an  examination  and  modification  or  reversal 
of  a  decree  rendered  upon  a  former  bill,  {a) 

Where  it  lies. — A  bill  of  revivor  lies  for  error  apparent  on 
the  record,  or  for  material  evidence  not  known  in  time  for  use 
at  the  former  trial,  and  not  discoverable  by  reasonable  dili- 
gence at  that  time ;  Q))  and  a  bill  filed  after  a  final  decree  in 
the  original  suit  between  the  original  parties  or  their  privies 
in  representation,  to  correct  errors  in  the  proceeding  or  the 

{a)  Griggs  vs.  Gear,  3  Gilm.  2 ;  see  McDaniel  vs.  James,  23  111.  408 ; 
Soner  vs.  Zimmerman,  45  111.  14  ;  Gardner  vs.  Emerson,  40  111.  296 ;  Sevier 
vs.  Magguire,  49  111.  67. 

(&)    Griggs  vs.  Gear,  3  Gilm.  2  ;  Garrett  vs.  Moss,  22  111.  363 ;  GetzUr  vs. 
Saroni,  18  111.  511 ;  Dexter  vs.  Arnold,  5  Mason,  303  ;  Quarrier  vs.  Carter,  4 
Hen.  &  M.  242;   Hodges  vs.  Mulliken,  1  Bland,  503;   St.  Glair  vs.  Piatt, 
Wright,  532  ;   Massie  vs.   GraJtam,  3  McLean,  41 ;  Jenkins  vs.  Preioitt,  7 
Blackf.  329  ;  Stevens  vs.  Hey,  15  Ohio,  313  ;  Greenleaf  vs.  McDoicell,  4  Ired. 
Eq.  R.  481 ;  James  vs.  Fisk,  9  Smedes  &  M.  144 ;  Kennedy  vs.  Georgia  State 
Bank,  8  How.  U.  S.  586  ;   United  States  ys.  Sampeyas,  1  Hemp.  118  ;  Wiser  vs. 
Blackley,  2  Johns.  Ch.  R.  488 ;  Hollingswortli  vs.  McDonald,  2  Har.  &  J.  230 
Simms  vs.  Thompson,  1  Dev.  Ch.  197 ;  Burn  vs.  Poang,  3  Dessau.  596 
Bradshaw  vs.  Garrett,  1  Porter,  47;    Her  vs.  Routh,  3   How.  Miss.  276 
Starke  vs.  Mercer,  lb.  377  ;  Edmundson  vs.  Mosehy,  4  J.  J.  Marsh.  40 T :  Cal- 
Itr  vs.  Shields,  2  Stew.  &  Port.  417 ;  Story's  Eq.  PI.  §  407. 


250  BILL   OF   REVIEW. 

Nature  of,  and  When  Proper. 

decree,  is  a  bill  of  review,  {d)  It  is  proper  after  a  decree  is 
enrolled.  A  supplemental  bill  in  the  natui-e  of  a  bill  of  review 
is  proper  before  the  enrolhneiit;  (<?)  and  a  decree  is  considered 
as  enrolled  after  it  is  signed  by  the  chancellor  and  filed  by  the 
clerk  of  the  conrt.  {/) 

A  bill  of  review  cannot  be  supported  for  matter  existing  at 
the  time  of  the  decree  and  discovered  since,  without  aifidavit 
of  such  matter,  and  of  its  existence  at  the  time  of  the  decree ;  {g) 
nor  will  it  lie  upon  a  decree  rendered  by  consent  of  the  par- 
ties, unless  fraud  or  mistake  is  shown ;  {Jt)  nor  where  the  com- 
plainant himself  has  dismissed  the  bill ;  {i)  nor  where  the 
original  decree  has  been  affirmed  on  a  writ  of  error  or  ap- 
peal, [j)  And  after  the  allowance  of  an  appeal,  if  the  appel- 
lant neglects  to  prosecute  it,  he  will  be  precluded  from  tiling 
a  bill  of  review,  ijc) 

Matters  before  known  as  susceptible  of  proof  cannot  be 
made  the  ground  of  a  bill  of  this  nature,  il)  If  a  complainant 
goes  to  trial  unprepared,  it  is  no  ground  for  a  bill  of  review ; 
he  should  ask  for  a  continuance ;  (m)  and  a  bill  of  review 
cannot  be  permitted  after  a  demurrer  has  been  allowed  to  a 
former  bill  of  review,  nor  after  an  application  for  leave  to  file 
a  bill  of  review  has  been  refused ;  [n)  nor  can  a  bill  praying 
for  a  review  of  a  decree  clearly  erroneous,  from  the  fact  that 
some  of  the  parties  did  not  answer,  and  were  not  served  with 

{d)    Whiting  vs.  Bank  of  U.  S.  13  Pet.  6. 

(e)  Wiser  vs.  Blackley,  2  Joins.  Ch.  R.  488  ;  HoUingsworth  vs.  McDonald, 
2  Har.  &  J.  230 ;  Ellzey  vs.  Lane,  2  Hen.  &  M.  589 ;  Her  vs.  Routh,  8  How. 
Miss.  276 ;  see  also  Mead  vs.  Arms,  3  Vt.  148 ;  Furman  vs.  Coe,  C.  C.  B. 
96 ;  Greenwich  Bank  vs.  Loomis,  2  Sandf.  Ch.  E.  70  ;  Larson  vs.  Moore,  1 
Texas,  22. 

(/)  HoUingsworth  vs.  McDonald,  2  Har.  &  J.  230. 

(^r)   HoUingsworth  vs.  McDonald,  2  Har.  &  J.  230. 

(h)    Flagler  vs.  Ct^ow,  40  111.  414. 

{i)    Jones  vs.  ZoUicoffer,  1  Car.  L.  R.  376. 

ij)  Strader  vs.  Bgrd,  7  Ham.  184,  1st  part ;  Brewer  vs.  Bowman,  3  J.  J. 
Marsh.  492  ;  1  Hen.  &  M.  13. 

{k)    Gilchrist  vs.  Buie,  1  Dev.  &  Bat.  Ch.  R.  346. 

(I)     Southard  vs.  RusseU,  16  How.  U.S.  571 ;  McDaniel  vs.  James,  23  01. 407. 

(to)  Calmes  vs.  Ament,  1  A.  K.  Marsh.  459. 

(n)    Respass,  vs.  McClanalian,  Hardin,  342. 


BILLS   OF   REVIEW.  251 

Nature  of,  and  When  Proper  —  For  Error  of  Law. 

process,  be  sustained  where  the  original  bill  did  not  contain 
matter  which  would  entitle  the  complainant  to  relief,  (o) 

It  will  not  be  granted  foi*  a  mistake  in  the  calculation  of 
costs ;  nor  for  erroneous  deductions  from  the  evidence  in  the 
cause  by  the  chancellor ;  nor  for  the  discovery  of  new  evidence 
which  would  not  overturn  the  evidence  before  in  the  case ;  {jp) 
nor  where  the  party  was  prevented  from  proving  important 
facts  by  the  wrong  advice  of  his  counsel,  or  that  other  counsel 
was  prevented  by  illness  from  attending  the  trial ;  {q)  or  that 
the  attorney  employed  by  the  complainant  neglected  the  case. 
The  negligence  of  the  counsel  being  the  same  as  his  o\\n  neg- 
ligence, {r)  But  if  an  attorney  enters  the  appearance  of  a  party 
without  authority,  relief  may  be  granted,  {s) 

For  error  of  law. — A  bill  of  review,  for  error  apparent 
upon  the  face  of  the  record,  must  be  for  an  error  in  law  arising 
out  of  the  facts  admitted  by  the  pleadings,  or  recited  in  the 
decree  itself,  as  settled,  declared  or  allowed  by  the  court.  It 
cannot  be  sustained  upon  the  ground  that  the  court  has  decided 
wrong  upon  a  question  of  fact ;  it)  and  it  ought  not  to  be 
granted  to  an  interlocutory  decree  ;  but  if  there  be  error  there- 
in, it  may  be  corrected  on  motion  or  petition.  {\C)  Errors  of 
law,  against  which  relief  can  be  had  by  bill  of  review,  must  be 
such  as  arise  rather  from  ob\ious  mistake  or  inadvertence, 
appearing  on  the  face  of  the  decree,  or  at  least  of  record,  than 
from  alleged  error  in  the  deliberate  judgment  of  the  chancel- 
lor, on  a  debatable  question  of  law  or  equitable  right,  {v)     It 

(o)    Todd  vs.  LaugJilin,  3  A.  K.  Marsh.  535  ;  Todd  vs.  Lackey,  1  Litt.  270. 

{p)    Tounge  vs.  Forgey,  4  Heyw.  189. 

(q)  Franklin  vs.  Wilkinson,  3  Munf.  112  ;  MilUpaugh  vs.  McBride,  7  Paige, 
Ch.  R.  509  ;  Tripp  vs.  Vincent,  8  Paige,  Ch.  R.  179. 

(r)    Tales  vs.  Monroe,  13  111.  212  ;  Smith  vs.  Powell,  50  111.  21. 

(«)    Griggs  vs.  Gear,  3  Gilm.  2  ;  2  Yeates,  546. 

{t)  Webb  vs.  Pell,  3  Paige,  Ch.  R.  368  ;  Manigault  vs.  Deas,  1  Bailey,  Ch. 
R.  283 ;  Turner  vs.  Berry,  3  Gilm.  541  ;  Evans  vs.  Clement,  14  111.  206  ;  Gar- 
rett vs.  Moss,  22  111.  363;  Fellers  vs.  Rainey,  82  111.  114. 

(u)  Banks  vs.  Anderson,  2  Hen.  &  M.  20;  Jenkins  vs.  Eldridge,  3  Story, 
R.  299;  see  Hoig  vs.  Thrap,  84  111.  302. 

(r)  Caller  vs.  Shields,  2  Stew.  &  Port.  417;  Younge  vs.  Forgey,  4  Heyw 
189. 


252  BILLS   OF   REVIEW. 

When  Proper  —  For  Error  of  Law. 

cannot  be  brought  ujjon  the  ground  that  the  former  decree  was 
not  supported  by  the  evidence,  {w)  And  no  evidence  is  admis- 
sible to  facts  established  by  the  original  decree,  (x) 

The  error  must  appear  on  the  face  of  the  pleadings  and 
decree ;  for  the  evidence  in  the  case  at  large  cannot  be  looked 
into  to  ascertain  whether  the  court  misunderstood  the  facts,  (y) 
That  is  the  proper  province  of  the  court  upon  appeal.  But 
taking  the  facts  to  be  as  they  are  stated  to  be  on  the  face  of  the 
decree,,  it  must  be  shown  that  the  court  has  erred  in  point  of 
law.  (s)  If  therefore,  the  decree  does  not  contain  a  statement 
of  the  material  facts  on  which  it  is  founded,  it  is  plain  that 
there  can  be  no  relief  by  a  bill  of  review,  but  only  by  an 
appeal  or  writ  of  error  to  some  superior  tribunal,  (a)  It  is  on 
this  account  that  the  English  decrees  are  usually  drawn  up 
with  a  special  statement  of,  or  reference  to,  the  material 
grounds  of  fact,  which  support  the  decree. 

In  the  courts  of  ^the  United  States  the  decrees  are  usually 
general,  without  any  such  statement  of  facts.  In  England, 
the  decree  embodies  the  substance  of  the  bill,  pleadings  and 
answers.  In  the  courts  of  the  United  States  the  decree  usually 
contains  a  mere  reference  to  the  antecedent  proceedings,  with- 
out embodying  them.  But  for  the  purpose  of  examining  all 
errors  of  law,  the  bill,  answers,  and  other  proceedings,  are,  in 
our  practice,  as  much  a  part  of  the  record  before  the  court,  as 
the  decree  itself;  for  it  is  only  by  a  comparison  with  the 
former,  that  the  correctness  of  the  latter  can  be  sustained,  (h) 

(w)  Dougherty  vs.  Morgan,  6  Monr.  153  ;  Whiting  vs.  Bank  of  the  U.  8. 
13  Pet.  6. 

(«)  Johnson  vs.  Donnel,  15  111.  100 ;  Turner  vs.  Berry,  3  Gilm.  541 ; 
Evans  vs.  Clements,  14  111.  206 ;  Garrett  vs.  Moss,  22  111.  363 ;  Caller  vs. 
Shields,  2  Stew.  &  Port.  417:  Jurhon  vs.  Stephens.  75  III.  255. 

iy)  Story's  Eq.  PI.  §  403  ;  Dexter  vs.  Arnold,  5  Mason,  303,  310 ;  Green- 
tcich  Bank  vs.  Loomis,  2  Sandford,  70. 

(s)     2  Barb.  Ch.  Pr.  01 ;  Story's  Eq.  PI.  403-404  . 

(a)  Dexter  vs.  Arnold,  5  Mason,  311;  Mellish  vs.  Williams,  1  Vern.  166; 
O'Brien  vs.  Connor,  2  Ball  &  Beat.  146,  154. 

(b)  Story's  Eq.  PI.  §  407 ;  Dexter  vs.  Arnold,  5  Mason,  311,  312 ;  Wyatt, 
Pr.  Keg.  98 ;  Combs  vs.  Proud,  1  Cli.  Cas.  54 ;  Webb  vs.  Pell,  3  Paige  Ch. 
R.  368. 


BILLS   OF  KEVIEW.  263 

When  Proper  —  For  Newly -discovered  Evidence. 


And  it  is  said,  that  in  the  American  courts,  where  the 
English  practice  of  reciting  the  proceedings  in  the  decree 
does  not  prevail,  the  proceedings  themselves  are  the  subject 
matter  of  revision  in  a  bill  of  review,  to  the  same  extent,  and 
in  the  same  manner,  as  if  they  were  stated  on  the  face  of  the 
decree,  in  conformity  with  the  English  practice,  (c) 

Upon  a  bill  of  review,  a  court  will  revise,  correct,  or  reverse 
its  own  decree,  for  an  erroneous  application  of  the  law  to  the 
facts  found,  whenever  a  court  of  appeals  would  do  so  for  the 
same  cause,  (d) 

Newly  discovered  evidence. — A  bill  of  review  lies  for  newly 
discovered  evidence  material  to  the  issue,  if  such  evidence  was 
not  known  until  after  the  trial  of  the  cause,  {e)  The  matter 
of  newly  discovered  evidence  must  be  relevant,  and  such  as 
materially  affects  the  merits  of  the  case ;  mere  accumulative 
evidence  is  not  sufficient,  (/")  and  the  new-matter  must  be  to 
prove  what  was  before  in  issue,  and  not  to  prove  a  title  not 
before  in  issue ;  not-  to  make  a  new  case,  but  to  establish  the 
old  one.  (^)  And  unless  discovered  after  the  decree  is  pro- 
nounced, it  is  not  ground  for  a  bill  of  review.  (A) 

A  bill  of  review  will  not  be  allowed  for  alleged  newly  dis- 
covered evidence,  where  it  appears  that  the  evidence  was,  or 
might  have  been,  by  reasonable  diligence,  known  at  the  hear- 

(c)  Tomlinson  vs.  McKaig,  5  Gill,  258. 

(d)  Evans  vs.  Clements,  14  111.  206 ;  Moore  vs.  Bracken,  27  111.  23 ;  Briggs 
ve.  Oea/r,  3  Gilm.  2  ;  Raymond  vs.  Fisher,  45  Miss.  145. 

{e)  Dexter  vs.  Arnold,  5  Mason,  303 ;  Yates  vs.  Monroe,  13  111.  212 ;  see 
Love  vs.  Blewett,  1  Dev.  &  Bat.  Ch.  108  ;  Her  vs.  Boutli,  3  How.  Miss.  276 ; 
Randolph  vs.  Randolph,  1  Hen.  &  M.  181 ;  Respass  vs.  McCanahan,  Hardin, 
342;  Bowles  vs.  Soutli,  Hardin,  451;  Huffacre  vs.  Oreen,  4  Heyw.  51. 

(/)  Livingston  vs.  Hulls.,  8  Johns.  Cli.  R.  124  ;  Ord  vs.  Noel,  6  Mad.  127 1 
Blake  vs.  Foster,  2  Molloy,  257;  Wiser  y-a.  Blackley ,'2  Johns.  Ch.  488 ;  Story's 
Eq.  PI.  §  413;  Hall  vs.  Fulletton,  69  111.  448. 

ig)  Dexter  vs.  Arnold,  5  Mason,  303  ;  Young  vs.  Keighley,  16  Ves.  348, 
354 ;  Huffacre  vs.  Oreen,  4  Heyw.  51 ;  Love '  vs.  Blewett,  1  Dev.  &  Bat. 
Ch.  108. 

iji)    Winston  vs.  Johnson,  2  Munf .  305  ;  McCrackin  vs.  Finley,  1  Bibb,  455 ;. 

but  see  Caller  va.  Shields,  2  Stew.  &  Port.  417. 


254  BILLS   OF  EEVIEW. 

Parties  to. 

ing  of  the  original  bill ;  (^)  nor  because  certain  documentary 
evidence,  intended  to  be  used  in  the  original  cause,  was  lost  or 
mislaid  by  the  complainant's  counsel,  and  could  not  be  found 
until  after  the  hearing,  {j) 

The  allowing  of  a  bill  of  review  for  newly  discovered  evi- 
dence rests  in  the  sound  discretion  of  the  court,  (h) 

A  part}^  who  has  been  guilty  of  laches,  will  not  be  allowed 
to  file  a  bill  of  this  nature.  {I) 

SECTION  II. 
PABTIES   TO. 

No  persons,  except  the  parties  and  their  privies  in  represen- 
tation, such  as  heirs,  executors  and  administrators,  can  have  a 
bill  of  review,  strictly  so  called,  (m)  All  parties  to  the  original 
bill  should  be  made  parties,  {ri) 

A  bill  of  review  may  be  brought  by  the  party  who  obtained 
the  original  decree  in  his  own  favor,  if  such  decree  was  injurious 
to  him.  [o)    But  a  party  cannot  file  a  bill  if  he  has  no  interest  in 

{i)  Hodges  vs.  MulliMn,  1  Bland,  503  ;  Bradshaw  vs.  Oarrett,  1  Porter,  47 ; 
St.  Glair  vs.  Piatt,  Wriglit,  532  ;  Barnes  vs.  Dickinson,  1  Dev.  Ch.  E.  826  ; 
Oentry  vs.  Thornherry,  3  Dana,  500 ;  see  also  Winston  vs.  Johnson,  2  Munf. 
305 ;  McCrackin  vs.  Pinley,  1  Bibb,  455  ;  Quick  vs.  Lilly,  2  Green,  Ch.  E.  255 ; 
Dexter  vs.  Arnold,  5  Mason,  312,  320, 321 ;  Massie  vs.  OraJiam,  3  McLean,  41 ; 
Jenkins  vs.  Prewitt,  7  Blackf .  329 ;  Stevens  vs.  Hey,  15  Ohio,  313 ;  Hughes  vs. 
Jones,  2  Md.  Ch.  Decis.  293  ;  BoUnson  vs.  Sampson,  26  Maine,  11 ;  Bingliam  vs. 
Dawson,  Jacob,  243  ;  Livingston  vs.  Hubhs,  3  Johns.  Ch.  124 ;  Pendleton  vs. 
Fay,  3  Paige,  Ch.  E.  204  ;  Ord  vs.  Neol,  6  Mad.  127. 

ij)    Jones  vs.  Pilcher,  6  Munf.  425 ;  Speight  vs.  Adams,  1  Freeman,  Ch.  318. 

(k)  Griggs  vs.  Gear,  3  Gilm.  2 ;  Getzler  vs.  Saroni,  18  111.  511 ;  2  Dan. 
Ch.  Pr.  1633  ;  Story's  Eq.  PI.  §  417 ;  Bennett  vs.  Lee,  2  Atk.  528;  Wilson  vs. 
Webb,  2  Cox,  3  ;  Toung  vs.  Keighly,  16  Ves.  348 ;  Perry  vs.  Phelips,  17  Ves. 
176-178 ;  Thomas  vs.  Harvie's  Heirs,  10  Wheat.  146 ;  Wood  vs.  Mann,  2 
Sumner,  316;  Massie  vs.  Grant,  3  McLean,  41;  P.  <&  M.  Bank  vs.  Dundas, 
10  Ala.  661 ;  Taylor  vs.  Taylor,  1  ivfac.  &  Gord.  405. 

{I)     Rubber  Co.  vs.  Goodyear,  9  Wallace,  805. 

{m)  Story's  Eq.  PI.  §409;  Gilb.  For.  Eom.  184;  Slingsiyva.  Hale,  1  Ch. 
Cas.  122;  see  Turner  vs.  Berry,  3  Gilm.  541. 

(n)  Cooj).  Eq.  PI.  95  ;  2  Barb.  Ch.  Pr.  94 ;  Dexter  vs.  Arnold,  5  Mason, 
308  ;  Bank  of  U.  S.  vs.  White,  8  Pet.  252. 

"(o)    Dexter  vs.  Arnold,  5  Mason,  308. 


BILLS   OF   REVIEW.  255 


Parties  to  —  Leave  to  File. 


the  question  intended  to  be  presented  thereby,  and  when  he 
cannot  be  benefited  by  the  reversal  or  modification  of  the 
former  decree,  {p)  And  even  persons  having  an  interest  in  the 
cause,'  if  not  aggrieved  by  the  particular  errors  assigned  in  the 
decree,  cannot  maintain  a  bill  of  review,  however  injurious  the 
decree  may  afiect  the  rights  of  third  persons,  {q) 

Other  persons  in  interest^  and  in  privity  of  title  or  estate, 
who  are  aggrieved  by  the  decree,  such  as  devisees,  and  remain- 
der men,  are  entitled  to  maintain  an  original  bill  in  the  nature 
of  a  bill  of  review,  so  far  as  their  own  interests  are  concerned,  (r) 

A  defendant  may  file  a  bill  of  review,  {s) 

SECTION  III. 
LEAVE    TO    FILE. 

According  to  the  English  practice,  leave  of  the  court  must 
be  obtained  before  a  bill  of  review  can  be  filed,  upon  the  dis- 
covery of  new  matter,  and  which  leave  the  court  will  not  grant 
without  an  afliidavit  that  the  new  matter  could  not  be  produced 
or  used  by  the  party  claiming  the  benefit  of  it,  at  the  time 
when  the  decree  w^as  made.  And  such  afiidavit  must  state  the 
nature  of  the  new  matter ;  in  order  that  the  court  may  exer- 
cise its  judgment  upon  its  relevancy  and  materiality,  (t) 

Upon  an  application  of  this  nature,  the  chancellor  exercises 
his  judgment  as  to  the  propriety  of  interfering  or  meddling 
with  the  decree  for  the  cause  disclosed,  and  grants  or  refuses 
leave  to  file  a  bill  of  review  accordingly,  [ii) 

The  court  may  refuse  it  to  the  party  applying,  and  grant  it 
for  the  protection  of  the  interests  of  others,  {v) 

(p)    Wehb  vs.  Pell,  3  Paige,  Ch.  R.  368. 

(q)  Thomas  vs.  Harde's  Heirs,  10  Wheat.  146  ;  Mitf.  Eq.  PI.  205  ;  Story's 
Eq.  PI.  §  409. 

(r)  Mitf,  Eq.  PL  92  ;  Wyatt,  Pr.  Reg.  98, 100  ;  Turner  vs.  Berrtj,  3  Gilm. 
541 ;  Singleton  vs.  Singleton,  8  B.  Monroe,  340. 

(s)    Osborne  vs.  Usher,  6  Bro.  P.  C.  20;  2  Barb.  Ch.  Pr.  94. 

\f)  Coop.  Eq.  PI.  92  ;  Mitf.  Eq.  PI.  84 ;  Qilb.  For.  Rom.  186-188 ;  Story's 
Eq.  PI.  412 ;  2  Barb.  Ch.  Pr.  95  ;  see  Oetzler  vs.  Saroni,  18  III.  511. 

{u)    HoUingsicorth  vs.  McDonald,  2  Har.  &  J.  230. 

(p)    Hodges  vs.  Milliken,  1  Bland,  511. 


256.  BILLS    OF  EEVIEW." 

Performance  of  Decree  —  Petition  for  Leave  to  File. 

It  has  been  held,  that  leave  to  file  a  bill  of  review,  for  error 
in  law,  apparent  on  the  record,  is  not  necessary,  (w) 

Performance  of  decree. — It  is  a  general  rule  that  leave  to 
file  a  bill  of  review  will  not  be  granted  unless  the  decree  has 
been  performed,  {x)  Therefore,  if  the  decree  be  for  the 
payment  of  money,  the  party  must  pay  it,  or  give  security, 
although  it  should  afterwards  be  ordered  to  be  refunded.  (3/) 
But  the  rule  may  be  dispensed  with  under  the  circumstances 
of  each  case.  Thus,  where  the  party  is  in  execution  for  non- 
payment of  money  under  the  decree,  this  is  considered  equiva- 
lent to  performance,  (s)  So,  when  a  party  is  insolvent,  {a)  or 
has  given  security  for  the  performance  of  the  decree.  (5) 

The  construction  of  the  rule  is,  that  the  party  need  only  per- 
form so  much  of  the  decree  as  at  the  time  of  filing  his  bill  he 
is  bound  to  perform.  Whatever  he  is  then  bound  to  do  he  must 
do  before  he  files  his  bill.  But  the  permission  to  file  it  is  upon 
the  implied  engagement  that  the  original  decree  shall  be  per- 
formed. Therefore,  if  after  the  bill  is  filed,  the  period  arrives 
when  the  money  ought  to  be  paid,  the  party  must  pay  it,  or 
an  application  to  dismiss  the  bill  may  be  made,  (c) 

If  a  bill  of  review  is  filed  without  leave,  it  may  be  dismissed 
on  motion,  {d) 

Petition  for. — The  application  for  leave  to  file  a  bill  of 
review  should  be  made  by  petition,  which  should  state  the 
nature  of  the  suit,  the  decree,  and  the  errors  of  law,  or  the 

{w)  Well  vs.  Pell,  1  Paige,  Ch.  R.  564  ;  8t.  Clair  vs.  Piatt,  Wright,  533 ; 
and  see  Oetzler  vs.  Saroni,  18  III.  511. 

(a;)  Wiser  vs.  Blackley,  2  Johns.  Ch.  E.  488  ;  Limngston  vs.  Hubbs,  8  Johns. 
Ch.  R.  124 ;  see  Origgs  vs.  Gear,  2  Gilm.  2 ;  Horner  vs.  ZAmmerraan,  45 

m.  14. 

{y)    Lube's  Eq.  PI.  139  ;  2  Barb.  Ch.  Pr.  96. 

(s)  Livingston  vs.  Hubbs,  3  Johns.  Ch.  R.  124  ;  see  Taylor  vs.  Person,  2 
Hawks,  298. 

{a)    Stalling's  Aclmr.  vs.  Goodloe's  Exr.  3  Mur.  159. 

(6)  Id.  lb. ;  3  Bac.  Ord. ;  Levil  vs.  Darcey,  1  Ch.  Cas.  42 ;  2  Barb.  Ch. 
Pr.  90. 

(c)  2  Barb.  Ch.  Pr.  96 ;  Partridge  vs.  Usborne,  5  Russ.  251 ;  Welf.  Eq. 
PI.  90  ;  Gilb.  For.  Rom.  185. 

{(I)    Carroll  vs.  Parren,  1  Bland,  125;  see  Forman  vs.  Stickney,  111  111.  576. 


BILLS   OF  REVIEW.  257 

Form  of  Petition  for  Leave  to  File  —  For  Error  of  Law. 

new  matters,  as  the  case  may  be,  upon  wliich  the  application 
is  foujided,  and  should  pray  for  liberty  to  file  a  bill  of  review, 
to  bring  such  decree  into  review.  If  the  application  is  founded 
upon  the  discovery  of  new  matter,  the  petition  must  describe 
the  new  evidence  distinctly  and  specifieally,  and  state  when  it 
was.  discovered  and  its  bearing  on  the  decree,  {e)  It  is  not 
sufficient  to  state  that  the  petitioner  expects  to  prove  certain 
facts.  He  must  state  the  exact  evidence  to  establish  them. 
On  the  hearing  of  such  petition,  affidavits  may  be  admitted 
on  both  sides,  if  necessary,  to  explain  the  nature  of  the 
evidence,  {f) 

No.  96.     Petition  for  leave  to  file  a  Mil  of  review  for  errors 

of  law. 

{Title  of  cause.) 

To   the   Honorable  ,  Judge  of  the  Court  of  the 

County  of ,  in  the  State  of , 

In  Chancery  sitting: 

The  petition  of  A.  B.,  the  above-named  complainant,  respect- 
fully represents  that  on,  etc.,  your  petitioner  tiled  his  bill  in 
■this  honorable  court,  against  C.  D.  for  the  purpose  of,  etc., 
{Mere  state  the  object  of  the  hill,)  and  praying,  etc.  (Here 
state  the  prayer. 

And  your  petitioner  further  represents  that  the  said  C.  D., 
being  served  with  process,  appeared  and  put  in  his  answer 
thereto  ;  to  which  a  replication  was  filed.  And  the  said  cause 
being  at  issue,  witnesses  were  thereupon  examined  on  both 
sides,  and  the  proofs  closed.  And  that  said  cause  was  brought 
to  a  hearing  before  your  honor  on,  etc. ;  whereupon  a  decree 
was  rendered  to  the  following  effect,  etc.  {Here  set  forth  the 
substance  of  the  decree^  (*) 

And  your  petitioner  further  represents,  that  he  is  advised 
that  the  said  decree  is  erroneous  and  ought  to  be  reviewed  and 
reversed,  and  set  aside  for  many  apparent  errors  and  imper- 
fections, among  which  are  the  following,  viz.  {Here  set  forth 
the  errors  coinjplained  of.) 

For  all  which  errors  and  imperfections  in  the  said  decree 

(e)    Dexter  vs.  Arnold,  5  Mason,  303. 

(/)  lb. ;  Hollingsworth  vs.  McDonald,  3  Har.  &  J.  330 ;  3  Barb.  Ch. 
Pr.  95. 

17 


258  BILL   OF   EEVIEW. 


Form  of  Petition  for  Leave  to  File,  etc.  —  Witliin  what  Time  to  be  Brought. 

appearing  on  the  face  thereof,  your  petitioner  is  desirous  of 
bringing  his  bill  of  review  to  be  relieved  in  the  premises. 

Your  petitioner  therefore  prays  that  leave  may  be  granted 
to  him  to  file  a  bill  of  review  against  the  said  0.  D.  for  the 
purpose  of  having  the  said  decree  reviewed,  reversed  and  set 
aside ;  and  that  no  further  proceedings  may  be  had  under  the 
same.  A.  B. 

5  Sol.  for  Petitioner. 

No.  97.     Petition  for  le(me  to  file  a   'bill  of  review  upon 
discovery  of  new  matter. 

{As  in  the  last  form,  JVo.  96,  to  the  asterisk  (*),  and  then) 
And  your  petitioner  further  represents,  that  since  the  rendition 
of  said  decree,  your  orator  has  discovered  new  matter  of  con- 
sequence in  the  said  cause,  particularly  that,  etc.,  (Sere 
set  forth  the  new  evidence  distinctly  and  specifically  /)  which 
new  matter  your  petitioner  did  not  know,  and  could  not,  by 
reasonable  diligence,  have  known,  so  as  to  make  use  thereof  in 
the  said  cause,  previous  to  and  at  the  time  of  the  pronouncing 
the  said  decree.  That  your  petitioner  first  learned  of  the  said 
newly  discovered  evidence  about,  etc.  {Here  state  when  it  was 
first  dAsGovered.)  And  your  petitioner  is  advised  that  the 
said  new  matter,  etc.     {Here  state  its  hearing  on  the  decree.) 

Your  petitioner  therefore  prays  that  he  may  be  at  liberty  to 
file  a  bill  of  review  for  the  purpose  of  having  the  said  decree 
reviewed,  reversed  and  set  aside,  and  that  no  further  proceed- 
ings may  be  had  under  the  same.  A.  B. 

,  Sol.  for  Complainant. 

{Add  affidavit.) 


SECTION  IV. 
WITHIN    WHAT    TIME   TO    BE    BROUGHT. 

In  England,  twenty  years  after  the  pronouncing  of  the  decree 
is  the  limitation  for  a  bill  of  review,  {g)  In  Indiana,  a  bill  of 
review  filed  in  October,  1832,  founded  on  newly  discovered 
evidence,  alleged  to  have  been  discovered  in  the  summer  of 
1828,  was  lield  to  have  been  filed  in  time.  (A)     In  that  state, 

ig)    Lube's  Eq.  PI.  133 ;  Coop.  Eq.  PI.  93  93. 

(A)    Jenkins  vs.  Prewitt,  6  Blackf.  337. 


BILLS   OF   EEVIEW.  259 

Order  for  Leave  to  File  —  Form  of  Bill. 

the  statute  of  limitations  begins  to  run  from  the  time  of  the  dis- 
covery of  new  evidence,  which  is  five  years,  {ij 

In  Illinois,  bills  of  review  are  limited,  like  writs  of  error,  to 
five  years.  {J) 

No.  98.     Order  for  leave  to  file  hill  of  review. 

{Caption,  with  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  coming  on  to  be  heard  this  day,  on  the  petition 
of  C.  D.,  the  defendant,  praying  for  leave  to  file  a  bill  of 
review  in  this  cause,  and  counsel  for  the  respective  parties 
having  been  heard ;  and  the  court  being  fully  advised  in  the 
premises,  does  order  that  the  said  C.  D.  be  at  liberty  to  file  a 
bill  of  review,  touching  the  several  matters  in  the  said  petition 
mentioned,  and  for  relief  in  the  premises  as  he  may  be  advised. 

SECTION  V. 
rOKM    OF    BILL. 

In  a  bill  of  review  it  is  necessary  to  state  the  former  bill, 
and  all  the  proceedings  under  it ;  the  decree  and  the  points  in 
which  the  party  exhibiting  the  bill,  conceives  himself  aggrieved 
by  it ;  and  the  ground  of  law  upon  which  he  seeks  to  impeach 
it;  or  if  it  is  brought  upon  newly  discovered  evidence,  the 
evidence  must  be  stated  distinctly  and  specifically,  and  what  is 
its  bearing  upon  the  decree  sought  to  be  impeached,  ijc) 

The  bill  must  either  deny  the  justice  of  the  demand  estab- 
lished by  the  decree  sought  to  be  reviewed,  or  the  complainant 
must  allege  that  he  has  paid  it  and  the  costs,  or  else  give  a 
sufiicient  reason  for  omitting  to  do  so.  (Z) 

The  complainant  may  join  in  the  same  bill  both  grounds  for 

(i)    Jenkins  vs.  Prewitt,  5  Blackf.  7. 

0')    Li/an  vs.  Bobbins,  46  111.  276. 

(k)  Gardner  vs.  Emmerson,  40  111.  296 ;  Turner  vs.  Berry,  3  Gilm.  541 ; 
Oetzler  Ys,  Saroni,  18  111.  511;  Oilclirist  vs.  Buie,  1  Dev.  &  Bat.  Ch.  346; 
Story's  Eq.  PI.  ^  420 ;  Dougherty  vs.  Morgan,  6  Monr.  151 ;  Marvin  vs. 
Trumbull,  Wright,  386  ;  Kellom  vs.  Easley,  2  Abbot's  C.  C.  R.  559  ;  S.  0.  1 
Dillon,  281 ;  14  Wallace,  279. 

{I)  Horner  vs.  Zimmerman,  45  111.  14 ;  3^  Adams'  Eq.  418 ;  Lube  a 
Eq.  130. 


260  BILLS   OF  EEVIEW. 

Form  of  Bill  upon  Error  in  Law. 

a  bill  of  review  ;  first,  error  of  law,  apparent  on  the  face  of  the 
decree,  and,  second,  newly  discovered  evidence,  (m) 

The  bill  may  simply  pray  that  the  decree  may  be  reviewed, 
and  reversed  in  the  points  complained  of,  if  it  has  not  been 
carried  into  execution,  (n)  If  it  has  been  carried  into  execu- 
tion, the  bill  may  also  pray  the  further  decree  of  the  court  to 
put  the  party  complaining  of  the  former  decree  into  the  situa- 
tion in  which  he  would  have  been  if  that  decree  had  not  been 
executed,  (o)  If  the  bill  is  brought  to  review  the  reversal  of  a 
former  decree,  it  may  pray  that  the  original  decree  may 
stand.  (^) 

No.  99.     Bill  of  revievj  upon  error  in  law. 

To   the   Honorable  ,  Judge   of   the  Court  of  the 

County  of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  oi'ator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  one  C.  D.,  of,  etc.,  exhibited  his  original 
bill  of  complaint  in  this  honorable  court,  against  your  orator, 
and  thereby  set  forth,  that,  etc.,  {Here  the  substance  of  the 
original  hill,)  and  praying,  etc.,  {Here  set  out  the  prayer  ^) 
and  your  orator  being  served  with  process  for  that  purpose 
appeared  and  put  in  his  answer  to  the  said  bill,  to  the  effect 
following,  etc.,  {Here  insert  the  substance  of  the  answer  /)  and 
the  said  C.  D.  filed  his  replication  to  said  answer ;  and  issue 
having  been  joined,  and  witnesses  examined,  and  the  proofs 
closed,  the  said  cause  was  brought  to  a  hearing  in  this  honora- 
ble court,  on,  etc.,  when  a  decree  was  rendered ;  by  which  it 
was  ordered,  adjudged  and  decreed  that,  etc.  {Here  set  forth 
the  decree.)  (*) 

And  your  orator  further  represents,  that  the  said  decree  is 
erroneous,  and  ought  to  be  reviewed,  reversed,  and  set  aside 
for  many  apparent  errors  and  imperfections,  inasmuch  as  it 
appears  by  your  orator's  answer,  among  which  are  the  follow- 
ing :  {Here  insert  the  apparent  errors  /)  and  no  proof  being 
made  thereof,  no  decree  ought  to  have  been  made  or  grounded 
thereon,  but  the  said  bill  ought  to  have  been  dismissed,  for  the 

(wi)  3  Dan.  Ch.  Pr.  1630,  note  4 ;  Qriggs  vs.  Gear,  3  Gilm.  2. 

(n)   Mitf.  Eq.  PL  88,  89  ;  Coop.  Eq.  PI.  95  ;  Story's  Eq.  PI.  §  420. 

(p)    Id.  lb. 

(p)  Dexter  vs.  Arnold,  5  Mason,  308. 


BILLS   OF  EEVIEW.  2G1 

Form  of  Bill  on  Discovery  of  New  Matter. 

reasons  aforesaid.  For  all  which  errors  and  imperfections  in 
the  said  decree,  appearing  upon  the  face  thereof,  your  orator  has 
brought  this  his  bill  of  review,  to  be  relieved  in  the  premises. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity  ;  and  to  the  end  that 
the  said  C.  D.  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut 
not  under  oath,  the  answer  under  oath  heing  hereby  waived j 
and  that  the  said  decree  may  be  reviewed,  reversed  and  set 
aside,  and  no  further  proceedings  taken  thereon  ;  and  that  your 
orator  may  have  such  other  and  further  relief  in  the  premises 
as  equity  may  require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Praying  process  as  in  No. 
85,  ante,  page  £09.) 

No.  100.     Bill  of  review  on  discovery  of  new  matter. 

{As  in  the  last  forni,  No.  99,  to  the  asterisTc  (*),  and  then) 
And  your  orator  further  represents,  by  leave  of  this  honorable 
court  first  had  and  obtained  for  that  purpose,  that  since  the 
rendition  of  the  said  decree,  your  orator  has  discovered  new 
matter  of  consequence  and  material  in  said  cause,  particularly 
that,  etc.,  {Here  set  forth  the  new  matter  discovered ;)  which 
new  matter  your  orator  did  not  know;  and  could  not,  by  rea- 
sonable diligence  have  known,  so  as  to  make  use  thereof  in  the 
said  cause,  previous  to  and  at  the  time  of  the  hearing  and  the 
pronouncing  of  the  said  decree;  and  that  your  orator  first 
learned  of  the  existence  of  the  said  newly  discovered  evidence 
about,  etc.,  {Here  give  the  date  of  the  discovery  as  near  as 
may  he  ;)  and  your  orator  is  advised  that  the  said  new  matter, 
etc.    {Here  state  its  heai'ing  upon  the  decree^ 

And  your  orator  further  represents,  that  he  is  advised  and 
insists  that  under  the  circumstances  aforesaid,  the  said  decree, 
in  consequence  of  the  discovery  of  such  new  matter  as  aforesaid, 
ought  to  be  reviewed  and  reversed. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity,  and  to  the  end  that 
the  said  C.  D.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut  not 
under  oath,  the  OM'Sxoer  under  oath  heing  herehy  waived  /  and 
that  the  said  decree  and  all  proceedings  thereon  may  be  reviewed 
and  reversed,  and  no  further  proceedings  taken  thereon ;  and 
that  your  orator  may  have  such  other  and  further  relief  in  the 
premises  as  equity  may  require,  and  to  your  honor  may  seem 
meet. 


262  BILLS   OF  EEVIEW. 

Affidavit  to  Bill,  etc.  —  Defenses  to. 

May  it  please  your  honor,  etc.     {Praying ^ocess  as  in  No. 
85,  ante,  page  £09.) 

{Add  ujftdav'd  as  follows :) 

No.  101.     Affidavit  to  a  hill  of  review  on  discovery  of  new 

matter. 

State  of  


County  of f 

A.  B.,.  of,  etc.,  the  complainant  in  the  foregoing  bill  of  com- 
plaint, on  oath,  says,  that  he  has  heard  the  same  read,  and 
understands  the  contents  thereof;  and  that  the  matters  set  forth 
therein  as  new  matters,  are  true  in  substance  and  in  fact ;  that 
they  were  first  discovered  by  this  affiant  since  the  rendition  of 
the  decree  in  the  foregoing  bill  mentioned ;  to  wit,  about  the 
time  therein  stated ;  and  that  the  same  could  not  possibly  be 
had,  known  or  used  at  the  time  when  said  cause  was  heard  or 
the  decree  rendered. 

Subscribed,  etc.  A.  B. 

SECTION  VI. 
DEFENSES    TO. 

The  usual  mode  of  defense  to  a  bill  of  review  founded  upon 
alleged  errors  apparent  from  the  decree,  is  to  plead  the  former 
decree  in  bar  of  the  suit,  and  to  object  by  demurrer  to  the  vaca- 
tion of  the  decree,  alleging  as  a  ground  of  demurrer,  that  there 
IS  no  error  in  the  decree ;  {q)  or,  if  the  bill  is  brought  on  new 
matter  prc)per  to  be  answered,  the  defendant  must  put  in  an 
answer,  or  plead  thereto,  {r) 

Plea. — It  seems  that  it  is  not  necessary  to  plead  the  former 
decree,  if  such  decree  is  fully  and  fairh^  stated  in  the  bill  of 
review ;  (s)  and  the  books  of  practice  contain  the  forms  of  de- 
murrer only  to  such  a  bill. 

iq)  Coop.  Eq.  PI.  95  ;  Mitf .  Eq.  PI.  89  ;  Welf .  Eq.  PI.  242  ;  Gould  vs.  Tan- 
cred,  2  Atk.  534 ;  Dancer  vs.  Evett,  1  Vern.  392 ;  Smith  vs.  Turner,  1  Vern. 
273  ;  O'Brien  vs.  O'Conner,  2  Ball  &  B.  146. 

(r)    Lube's  Eq.  PI.  132  ;  2  Barb.  Cli.Pr.  98. 

(s)  Mitf.  Eq.  PL  204;  Coop.  Eq.  PI.  215,  216 ;  2  Barb.  Ch.  Pr.  98:  Welf 
Eq.  243  ;  Slin-rjsby  vs.  Hale,  1  Ch.  Cas.  122  ;  Jones  vs.  Kenrick,  5  Bro.  C.  P 
244,  248  ;  Barton's  Suit  in  Eq.  218 ;  Benny  vs.  Filmer,  2  Freem.  172. 


BILLS   OF  EEVIEW.  263 

Defenses  to  —  Plea,  etc. 

Length  of  time  is,  it  seems,  a  cause  of  demurrer,  as  if  the 
decree  has  been  pronounced  above  the  period  of  the  statute  of 
limitations ;  and  this  limitation  is  to  be  counted,  not  from  the 
time  of  the  enrollment  of  the  decree,  but  from  the  time  of  pro- 
nouncing it.  {t)  It  has  been  said  that  length  of  time  must  be 
pleaded  to  review,  even  if  apparent  upon  the  face  of  the  bill, 
that  it  is  brought  after  the  prescribed  period ;  for  that  otherwise 
the  complainant  would  not  be  able  to  avail  himself  of  the  ex- 
ceptions provided  in  the  statute  for  cases  of  disability,  as  infancy, 
coverture,  or  the  like,  {u)  But  there  is  reason  to  doubt  the 
propriety  of  this  doctrine ;  and  to  hold,  that  a  demurrer  will 
lie  in  such  a  case.  If  any  such  exception  exists,  it  is  the  duty 
of  the  complainant  to  set  it  forth  in  his  bill  of  review,  in  order 
to  repel  the  objection,  (v)  This  is  also  sustained  by  analogy  to 
original  bill,  {w) 

A  bill  of  review  upon  the  discovery  of  new  matter,  is  seldom 
liable  to  demurrer,  for  being  exhibited  only  by  leave  of  the 
30urt,  the  ground  of  the  bill  is  generally  well  considered  before 
it  is  filed  ;  and,  therefore,  in  point  of  substance,  it  can  rarely  be 
liable  to  a  demurrer,  (x)  Yet  even  in  such  case  demurrer 
seems  to  lie  to  review  for  new  matter  not  relevant,  though  the 
relevancy  ought  to  be  considered  when  leave  is  given  to  file 
the  bill,  (y) 

If  a  demurrer  to  a  bill  of  review  has  been  sustained,  it  may 
be  pleaded  to  a  new  bill  on  the  same  grounds,  being  an  eftect- 
ual  bar  to  another  bill  of  review.  (2) 

{t)  Edwards  vs.  Carroll,  2  Bro.  P.  C.  98 ;  SmytJie  vs.  Clay,  1  Bro.  C.  C. 
539,  note. 

(tt)  Coop.  Eq.  PI.  216;  Mitf.  Eq.  PI.  204,  205  ;  Welf.  Eq.  PI.  243  ;  Oregor 
vs.  MolesiDorth,  2  Ves.  109. 

(v)  Welf.  Eq.  PI.  243  ;  Mitf.  Eq.  PI.  205  ;  Gregor  vs.  Molesicoi-th,  2  Ves. 
109 ;  Edwards  vs.  Carroll,  2  Bro.  P.  C.  98 ;  Sherrington  vs.  Smith,  2  Bro.  P. 
C.  62 ;  Shepherd  vs.  Larue,  6  Munf.  529. 

(m)   Cook  vs.  Arnham,  3  P.  Wms.  284  ;  Foster  vs.  Hodgson,  19  Ves.  180. 

{X)    Welf.  Eq.  PI.  243  ;  Mitf.  Eq.  PL  204. 

{y)  Llewellen  vs.  Mackworth,  2  Atk.  40 ;  Mitf.  Eq.  PL  205  ;  Coop.  Eq. 
PL  216. 

(2)  Denny  vs.  Filmer,  2  Ch.  Cas.  133  ;  Pitt  vs.  Earl  of  Arglass,  1  Vern. 
441  ;   Woots  vs.  Tucker,  2  Vern.  120. 


264  BILLS   OF  KEVIEW. 

Defenses  to  —  Demurrer. 

"WTien  anything  out  of  the  decree,  as  length  of  time,  pur- 
•  chase  for  a  valuable  consideration,  or  any  other  matter,  is  to  be 
offered  against  the  opening  of  the  decree,  that  matter  must  be 
pleaded,  {a) 

A  bill  of  review  upon  the  discovery  of  new  matter  seems 
liable  to  any  plea,  which  would  have  avoided  the  effect  of  that 
matter  if  charged  in  the  original  bill.  And  a  plea  lies  to  the 
fact  of  the  discovery  of  new  matter,  (b)  This  has  been  doubt- 
ed, but  the  doubt  does  not  seem  to  be  well  founded  ;  for  if  the 
fact  of  discovery  is  in  issue  in  the  cause,  it  ought  to  be  proved, 
to  entitle  the  complainant  to  demand  the  judgment  of  the 
court  on  the  matter  alleged  as  ground  for  reviewing  the  decree ; 
and  it  may  consequently  be  disproved  by  evidence  on  the  part 
of  the  defendant,  (c) 

Demurrer. — The  .regular  defense  to  a  bill  of  review  for 
errors  of  law  apparent,  being,  as  already  stated,  to  plead  the 
decree  in  bar  to  the  new  suit,  and  demur  to  the  opening  of  the 
decree,  on  the  ground  that  the  errors  assigned  are  not  such  as 
to  entitle  the  complainant  to  have  the  bill  reviewed,  much  less 
reversed  ;  the  first  question  being  whether  the  decree  should  be 
opened  and  reviewed.  And  this  is  argued  upon  the  demurrer, 
when  nothing  can  be  read  but  what  appears  upon  the  face  of 
the  decree.  If  the  demurrer  is  overruled,  there  arises  a  second 
question  —  whether  the  decree  ought  to  be  reversed;  and  the 
complainant  is  at  liberty  to  read  the  original  pleadings,  or  any 
other  evidence,  as  at  a  rehearing;  the  cause  being  equally 
open,  (d) 

If  the  bill  has  assigned  errors  at  law,  and  the  plea  and 
demurrer  are  allowed,  an  order  to  that  effect  is  made,  and  that 

{a)  Welf.  Eq.  PI.  244  ;  Eartwill  vs.  Townsend,  2  Bro.  P.  C.  107 ;  Gormcm 
vs.  McCuUock,  5  Bro.  P.  C.  597 ;  Braduh  vs.  Oee,  Ambl.  229. 

{}))    Mitf.  Eq.  PI.  292  ;  Coop.  Eq.  PI.  304,  305 ;  Beames'  PI.  in  Eq.  807. 

(c)  Welf.  Eq.  PI.  245  ;  Mitf.  Eq.  PI.  292  ;  Dexter  vs.  Arnold,  5  Mason, 
893  ;  Lube's  Eq.  PI.  249  ;  2  Barb.  Ch.  Pr.  99. 

id)    2  Barb.  Ch.  Pr.  100  ;  Lube's  Eq.  PI.  248. 


BILLS   OF  KEVIEW.  265 

Defenses  to  —  Answer  —  Form  of  Plea  to. 

the  bill  be  dismissed,  [e)  There  is  then  an  end  to  the  suit,  and 
no  new  bill  will  be  admitted  after  demurrer  allowed,  {f) 

If  the  demurrer  or  demurrer  and  plea  are  overruled,  the 
usual  decree  is  that  the  original  decree  be  reversed,  and  the 
errors  be  allowed,  {g) 

On  the  argument  of  a  demurrer  to  a  bill  of  review,  where 
several  errors  in  the  decree  have  been  assigned,  if  the  com- 
plainant should  prevail  only  in  one,  the  demurrer  must  be 
overruled ;  as  one  error  will  be  sufficient  to  open  the  decree. 
And  on  argument  of  a  demurrer  to  a  bill  of  review  for  error 
apparent  in  the  decree,  the  court  has  ordered  the  defendant  to 
answer;  saving  the  benefit  of  the  demurrer  to  the  hearing; 
and  on  the  hearing  has  finally  allowed  the  demurrer,  {h) 

Answer. — If  the  bill  of  review  is  brought  on  new  matter, 
fitting  to  be  answered,  the  defendant  may  put  in  an  answer 
controverting  the  fact  that  the  matter  is  newly  discovered,  {i) 

So,  if  a  bill  is  brought  for  newly  discovered  matter,  and  a 
demurrer,  or  plea  and  demuiTer  are  overruled,  it  is  laid  down 
that  the  defendant  must  answer,  as  facts  are  in  issue.  (/)  The 
case  will  proceed  upon  such  a  bill  as  upon  an  original  bill.  (Jc) 

No.  102.     Plea  to  a  hill  of  review. 

In  the Court 

CD.)  Term,  18—. 

ais.     >  In  Chancery. 
A.  B.  ) 

The  plea  of  C.  D.,  defendant,  to  the  bill  of  review 
of  A.  B.j  complainant. 
This  defendant,  etc.,  {As  in  Wo.  '28,  ante,  page  119,  to  the 
asterisk  *,  and  then)  that  by  the  course  and  practice  of  this 

(«)     Wehl  vs.  Pell,  3  Paige,  Ch.  R.  368. 

{/)  Woots  vs.  Tucker,  2  Vern.  120 ;  BenriT/  vs.  Filmore,  1  Vern.  135  ;  Pitt 
vs.  Earl  of  Ar glass,  1  Vern.  441. 

(g)    Cook  vs.  Bamfield,  8  Swanst.  607. 

i.h)   2  Barb.  Ch.  Pr.  204 ;  Mitf.  Eq.  PI.  204. 

(i)  Lube's  Eq.  PI.  133  ;  2  Barb.  Ch.  Pr.  100 ;  Dexter  \s.  Arnold,  5  Mason, 
303. 

(J)    Cook  vs.  Bamfield,  3  Swanst.  607. 

\k)    2  Hoff.  Pr.  12*;  2  Barb.  Ch.  Pr.  100. 


266  BILLS   OF  EEVIEW. 

Defenses  to  —  Form  of  Demurrer  to. 

conrt  no  decree  ought  to  be  reviewed  or  reversed  by  any- 
original  bill,  or  otherwise  than  by  bill  of  review  for  errors 
apparent  in  the  body  of  the  decree,  or  upon  a  new  matter 
come  to  the  parties'  knowledge  after  the  making  of  such 
decree,  and  that  by  leave  of  the  court  only  ;  wherefore,  and  for 
that  the  said  bill  of  review  does  not  set  forth  the  decree  truly, 
but  alleges  new  and  foreign  matters  not  contained  in  the 
decree,  and  pra^^s  process  generally  to  answer  and  not  to 
review,  this  defendant  pleads  the  said  decree,  which  is  in 
these  words,  to  wit :  {Here  set  forth  the  decree  verbatim ;)  as 
by  the  said  decree  now  remaining  of  record  in  this  honorable 
court  will  appear.  And  this  defendant  demands  the  judgment 
of  this  honorable  court,  whether  he  shall  be  compelled  to 
make  any  further  or  other  answer  to  the  said  bill  of  review, 
or  any  of  the  matters  and  things  therein  contained,  and  prays 
to  be  hence  dismissed  with  his  reasonable  costs  in  this  behalf 
sustained. 

Ifo.  103.     Demurrer  to  a  hill  of  review. 

In  the Court, 

C.  D.  )  Term,  18—. 

vs.    V  In  Chancery. 

A.  B.  ) 

The  demurrer  of  C.  D.,   defendant,  to  the  bill  of 
re^dew  of  A.  B.,  complainant. 

This  defendant,  etc.,  {As  in  No.  16,  ante,  jpage  108,  to  the 
asterisk  *,  cmd  then)  that  by  the  constant  rules  of  this  court 
no  bill  of  review  ought  to  be  admitted  to  alter  or  change 
matters  decreed,  only  for  error  in  law  appearing  in  the  body 
of  the  decree,  as  it  is  drawn  up  and  entered,  and  for  new 
matter  arising  since  the  decree,  or  such  matter  of  which  the 
complainant  in  the  bill  of  review  could  not  have  notice  at  the 
time  of  the  decree  ;  but  this  defendant  is  advised  that  the 
matters  assigned  by  the  said  bill  of  review  for  cause  of  reversal 
of  the  said  decree,  as  the  same  thereby  appears  by  the  com- 
plainant's bill,  are  neither  any  error  in  law  apparent  in  the 
body  of  this  decree,  nor  any  such  new  matter  as  aforesaid,  (but 
a  misjudgment  in  matters  of  form  only,  and  not  in  point 
of  right,  and  that  the  statement  contained  in  the  said  bill 
of  review  of  the  abatement  of  the  suit  before  the  decree 
passed,  is  merely  an  exception  in  point  of  form.) 

Wherefore,  etc.     ( Conclude  as  in  No.  16,  ante,  J)age  108.) 


CHAPTER  XXI. 


BILLS    OF    DISCOVERY. 


Section  1.    Nature  of,  and  when  Profeb. 

2.  Frame  and  Form  of. 

3.  Defenses  to. 

SECTION  I. 
NATURE   OF,    AND   WHEN    PROPER. 

Every  bill  praying  relief  is,  in  reality,  a  bill  of  discovery, 
■when  it  asks  from  the  defendant  an  answer  under  oath  or 
otherwise,  as  to  all  and  singular  the  matters  charged  in  the 
bill,  and  seeks  from  him  a  discovery  of  all  such  matters,  {a) 
But  the  kind  of  bills  usually  distinguished  by  that  title,  is  a 
bill  for  the  discovery  of  facts  resting  in  the  knowledge  of  the 
defendant,  or  of  deeds,  or  writings,  or  other  things  in  his  cus- 
tody or  power,  and  seeking  no  relief  in  consequence  of  the 
discovery,  although  it  ma,y  pray  for  the  sta}^  of  proceedings  at 
law  till  the  discovery  is  made.  (J) 

Since  the  passage  of  laws  in  most  of  the  states,  providing 
that  persons  interested  in  the  result  of  the  suit  shall  not  be 
disqualified  as  witnesses  by  reason  thereof,  a  resort  to  bills  of 
discovery  is  seldom  necessary.  Yery  little  space  will,  there- 
fore, be  here  occupied  in  considering  bills  of  this  nature.  K 
the  student  desires  to  pursue  the  subject  more  at  length,  see 
Hare  on  Discovery,  2  Story's  Equity  Jurisprudence,  chap. 
41,  and  other  elementary  works. 

A  bill  of  discovery  is  resorted  to  when  the  evidence  rests 
exclusively  with  the  party  called  upon  to  disclose  it.  If  there 
be  other  evidence,  such  a  bill  cannot  be  s\istained  ;  and  the 

{a)  Story's  Eq.  PI.  ^  311 ;  2  Story's  Eq.  Juris.  §  689.  1483 ;  Mitf.  Eq.  PI. 
68 ;  Coop.  Eq.  PI.  58 ;  2  Barb.  Ch.  Pr.  101 ;  Barton's  Suit  in  Eq.  74. 

(&)    Russell  vs.  Clark,  7  Crancli,  69  ;   Duncan  vs.  Ingles,  Breese,  277 
Tates  vs.  Monroe,  13  111.  212 ;  Shoticell  vs.  Smith,  20  N.  J.  Eq.  79. 


268  BILLS   OF   DISCOVERY. 

Nature  of,  and  When  Proper. 

complainant  in  the  bill  must  aver  and  swear  that  the  facts  are 
known  to  no  other  person,  (c) 

The  theory  and  basis  of  a  bill  of  discovery  in  equity,  in  aid  of 
a  defense  in  another  suit,  is  that  the  court  in  which  such  other 
suit  is  pending  has  no  means  of  compelling  a  discovery  from 
the  plaintiff  therein,  of  facts  material  to  the  defense,  {d) 

The  defendant  should  file  his  bill  of  discovery  before  judg- 
ment has  been  rendered  against  him.  He  cannot  go  into 
equity  for  discovery,  and  relief  against  the  judgment,  after  it 
has  been  rendered,  {e) 

A  resort  to  a  bill  of  discovery  is  always  hazardous  ;  for  if  a 
party  does  not  come  up  to  the  facts  as  the  complainant  has 
charged  them  to  be,  or  they  are  denied,  or  toned  down,  the 
answer  would,  in  many  cases,  be  of  little  avail  in  a  defense  at 
law.  (/) 

A  discovery  will  not  be  compelled  if  the  defendant  claims 
his  privilege,  and  declines  to  answer  such  allegations  of  the 
bill  as  may  have  a  tendency  to  subject  him  to  a  penalty,  for- 
feiture or  criminal  prosecution,  {g)  or  would  be  in  violation  of 
professional  confidence.  (A) 

A  party  is  not  obliged  to  resort  to  a  bill  of  discovery  in  the 
first  instance.  Should  he  do  so,  and  fail  in  obtaining  the  facts 
sought,  he  would  be  precluded  from  filing  an  original  bill,  {i) 
The  question  whether  he  is  entitled  to  a  discovery  against  a 
person  who  is  prosecuting  him  in  an  action  at  law,  cannot  be 
determined  until  he  has  filed  his  plea  to  such  action  divulging 
the  character  of  his  defense,  {j)     And  if  the  demand  for  dis- 

(c)     Vennum  vs.  Davis,  35  111.  568. 

{d)    Eeath  vs.  Erie  R.  B.  Go.  9  Blatchf.  316. 

(e)  Oreen  vs.  Massie,  21  Gratt.  Va.  356 ;  Laight  vs.  Morgan,  1  Johns.  Cas. 
429 ;  2  barb.  Ch.  Pr.  102,  and  cases  there  cited. 

(/)   Vennum  vs.  Davis,  35  111.  568  ;  Lane  vs.  Stebbins,  9  Paige,  622. 

(g)  Hayes  vs.  Caldwell,  5  Gilm.  33 ;  Lindsley  vs.  James,  3  Cald.  Tenn.  477  ; 
Northrop  vs.  Hatch,  6  Conn.  361 ;  Skinner  vs.  Judson,  8  Conn.  528. 

(h)  March  vs.  Davidson,  9  Paige,  Ch.  R.  580 ;  Well  Eq.  PI.  119, 123-127 ; 
United  States  Bank  vs.  Saline  Bank,  1  Pet.  100 

(i)    Vennum  vs.  Davis,  35  111.  568. 

(j)    Harris  vs.  Oalhraith,  43  111.  309. 


BILLS   OF  DISCOVERY.  26^ 

Frame  of  Bill,  etc. 

covery  is  considered  merely  colorable,  the  court  will  refuse  to 
take  jurisdiction.  (Jc) 

A  court  of  chancery  will  compel  a  discovery  in  aid  of  a  suit 
at  law,  where  the  leading  circumstances  rest  in  the  knowledge 
of  the  defendant,  whether  the  action  be  founded  on  contract  or 
tort.  {1}  The  bill  must  state  that  the  discovery  sought  is  neces- 
sary to  the  defense,  {m)  If  the  plaintiflF  seeks  to  change  the 
forms  of  litigation,  and  prays  for  relief  as  well  as  discovery,  his 
bill  must  show  a  cause  of  manifest  propriety  in  the  court  to 
retain  the  case,  {n) 

Where  a  court  of  equity  has  obtained  jurisdiction  of  a  cause 
for  the  purpose  of  discovery,  and  the  subject  matter  is  proper 
for  the  consideration  of  a  court  of  equity,  it  will  dispose  of  the 
case  finally,  although  the  remedy  at  law  is  fully  adequate  had 
not  the  discovery  been  necessary,  (o) 

SECTION  II. 
FRAME   AJSTD   FOKM   OF. 

A  bill  of  discovery  should  state  the  matter  concerning  which 
the  discovery  is  sought,  fully  and  precisely,  the  interest  of  the 
several  parties  in  the  subject,  and  the  right  of  the  complainant 
to  the  discovery.  It  must  also  show  that  the  discovery  is  ma- 
terial, either  to  the  prosecution  or  defense  of  an  action  which 
has  been  brought,  or  is  about  to  be  brought  at  law.  If  the 
bill  is  for  discovery  only,  it  is  not  necessary  to  aver  that  the 
party  cannot  otherwise  establish  his  case  at  law ;  but  the  rule 
is  ditferent  where  the  bill  seeks  relief  as  an  incident  to  the  dis- 

(Jc)   Jones  vs.  Bradsliaw,  16  Gratt.  Va.  355. 

(?)  Skinner  vs.  Judson,  8  Conn.  528 ;  Peck  vs.  Ashley,  12  Met.  478  ;  Beri- 
nett  vs.  Wolfolk,  15  Geo.  213. 

(m)  Hoioell  vs.  Ashmore,  1  Stockt.  N.  J.  82 ;  Turner  vs.  Dickerson,  lb.  140 ; 
Bell  vs.  Pomeroy,  4  McLean,  57. 

(»)    Brmon  vs.  Edsall,  1  Stockt.  N.  J.  256. 

(o)  Chichester  vs.  Vass,  1  Munf .  98 ;  Jenkins  vs.  Green,  1  A.  K.  Marsli. 
463 ;  Lynch  vs.  Sumrall,  Id.  468  ;  Love  vs.  Braxton,  Wythe,  58 ;  Traip  vs. 
Gould,  15  Maine,  82 ;  Armstrong  vs.  Gilchrist,  2  Johns.  Ch.  R.  424 ;  Hawley 
vs.  Cramer,  4  Conn.  717  ;  Gadsden  vs.  Lord,  1  Dessau.  208. 


270  BILLS   OF   DISCOVERY. 

Form  of  Bill. 

cover  J,  A  bill  of  discovery,  properly  so  called,  never  prays 
any  relief.  Should  such  a  bill  contain  a  prayer  for  relief,  a 
demurrer  would  lie  according  to  the  modern  English  practice, 
to  the  whole  bill.  The  rule  which  is  adopted  by  the  supreme 
court  of  the  United  States,  and  most  of  the  states,  and  which  is 
in  accordance  with  the  old  English  practice,  is  more  liberal,  and 
allows  the  complainant,  who  is  entitled  either  to  relief  or  dis- 
covery, the  benefit  of  that  part  of  his  bill  which  is  good.  "Where 
the  bill  seeks  relief  as  consequent  upon  the  discovery  of  a  bond 
or  other  evidence  of  title,  the  complainant  must  annex  an  affi- 
davit of  its  loss  or  destruction,  {p) 

A  bill  of  discovery  must  allege,  that  the  complainant  expects 
to  establish  the  truth  of  the  facts  alleged  in  the  bill  by  the  dis- 
covery sought  in  the  bill  from  the  defendant.  {^ 

In  a  bill  for  discovery  only  the  oath  of  the  defendant  cannot 
be  waived  as  in  other  cases,  (r) 

No.  10  Jf,.   Bill  of  discovery  to  discover  title  in  aid  of  a  defense 
to  an  action  of  eject/ment. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that,  etc.  {Here  set  forth  the  matter  concerning  which 
the  discovery  is  sought  fully  and  concisely,  the  interests  of  the 
several  parties  in  the  subject,  and  the  convplainanf  s  right  to 
tlie  discovery }j 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  who  is  made  party  defendant  to  this  bill,  may 
upon  his  corporal  oath  full,  true,  direct  and  perfect  answer 
make  to  all  and  singular  the  matter  aforesaid,  and  more  espe- 
cially that  he  may  answer  and  set  forth: 

I.  Whether  your  orator  is  not  now,  and  has  not  been,  for 
several  and  how  many  years  last  past,  and  from  what  time  in 
particular,  seized  in  his  demesne  as  of  fee,  or  otherwise,  and 

(p)  Barton's  Suit  in  Eq.  74,  75  ;  2  Barb.  Ch.  Pr.  104, 105 ;  March  vs.  Ba- 
mdson,  9  Paige,  Cli.  R.  580  ;  Story's  Eq.  PI.  §  317-320. 

(g)    Primmer  vs.  Patten,  32  111.  528  ;  Zoll  vs.  Campbell,  3  W.  Va.  226. 
(>•)    Rev.  Stat.  (1874)  201;  Rev.  Stat.  (1877)  186. 


BILLS   OF  DISCOVERY.  271 

Form  of  Bill. 

how  well  entitled  of,  in  or  to  the  said  premises  hereinbefore 
particularly  mentioned  and  described,  or  some,  and  what  part 
thereof,  or  how  otherwise  ? 

II.  And  whether  the  same  were  not  purchased  by  your 

orator  in  tlie  vear ,  and  when  in  particular,  of  and  from 

the  said  E.  D.  ? 

III.  And  whether  the  said  premises  were  not  duly  con- 
veyed to  your  orator  by  the  said  E.  D.,  by  such  indenture  of 
lease  and  release,  of  such  date  respectively  as  aforesaid,  or  by 
some,  and  what  other  means  in  particular  ? 

lY.  And  whether  your  orator  did  not,  under  and  by  vir- 
tue of  such  conveyance  to  him  by  the  said  E.  D.,  enter  into 
and  upon,  and  has  not  ever  since  been  in  the  actual  possession 
and  enjoyment  of  the  said  premises,  or  how  otherwise  ? 

Y.  And  whether  the  said  E.  D.  has  not  since  departed 
this  life,  and  when  ? 

YI.  And  whether  the  said  C.  D.  did  not,  upon  the  decease 
of  tlie  said  E.  D.,  and  by  what  means,  obtain  possession  of, 
and  has  not  now  in  his  custody,  possession  or  power,  all,  or 
most,  or  some,  and  whicli  of  the  title  deeds,  evidences,  and 
writings  of  the  said  E.  D.,  relating  to  the  premises  so  pur- 
chased by  your  orator  as  aforesaid  ? 

YII.  And  whether  the  same  do  not  also  relate  to  some, 
and  what  other  estates,  or  how  otherwise  ? 

YIII.  And  whether  the  said  C.  D.  has  not  brought  such 
action  of  ejectment  against  your  orator,  and  for  such  purpose 
as  hereinbefore  mentioned,  and  does  not  threaten  and  intend 
to  proceed  therein,  without  making  any  discovery  of  the  several 
matters  aforesaid,  unless  he  shall  be  restrained  therefrom  as 
aforesaid,  or  how  otherwise  ? 

And  that  the  said  C.  D.  may  also  discover  and  set  forth, 
in  manner  aforesaid,  whether  there  is  or  are  any,  and  what, 
outstanding  term  or  terms  of  years,  or  other,  and  what,  subsist- 
ing estate  in  said  premises,  prior  to  your  orator's  said  estate 
and  interest  therein,  which  will  defeat  the  title  of  your  orator, 
and  prevent  a  good  defense  at  law  to  the  said  action,  and  in 
whom  the  same  is  or  are  vested  ;  and  that  he  may  also  discover 
and  set  forth  how  he  makes  out  and  derives  his  pretended  title 
and  claim  to  the  said  premises  so  purchased  by  your  orator  as 
aforesaid,  and  the  nature  and  particulars  thereof?  And  that 
the  said  C.  D.  may  make  a  full  and  true  disclosure  and  discov- 
ery of  the  several  matters  aforesaid,  to  the  end  that  your  orator 
may  be  the  better  enabled  to  defend  the  said  ejectment ;  and 
that  in  the  meantime,  and  until  the  said  C.  D.  shall  have  made 
euch  discovery  as  aforesaid,  that  he  may  be  restrained,  by  the 


272  BILLS   OF   DISCOVERY. 

Defenses  to — Demurrer. 

order  and  injunction  of  this  honorable  court,  from  further 
proceedings  in  the  said  ejectment,  and  all  further  and  other 
proceedings  at  law  whatsover  against  jour  orator  touching 
the  several  matters  aforesaid,  or  any  of  them. 

May  it  please  your  honor,  etc.     \Prayer  for  summons,  and 
also  f  07'  injunction,  ante,  page  73.) 


SECTION  III. 
DEFENSES   TO. 

Defenses  to  a  bill  of  discovery  may  be  made  either  by  a  de- 
murrer, a  plea  or  an  answer.  If  the  matter  relied  on  by  the 
defendant  constitutes  a  defense  to  the  relief  or  purpose  sought 
by  the  bill,  whether  that  relief  be  at  law  or  in  equity ;  or  if  the 
defense  be  that  the  complainant  has  no  right  to  equitable  relief; 
or  that  neither  the  complainant  nor  defendant  has  aiiy  interest 
in  the  subject  matter;  or  that  the  defendant  is  a  hona fide  pur- 
chaser for  a  valuable  consideration  without  notice ;  or  that  the 
bill  does  not  declare  a  purpose  for  which  courts  of  equity  will 
compel  a  discovery ;  or  that  the  complainant  is  under  some  dis- 
ability ;  in  these,  and  in  like  cases,  though  the  defense  extends 
to  the  entire  subject  of  the  suit,  it  seems  now  settled  that  the 
objections  must  be  taken  by  way  of  plea  or  demurrer,  (s) 

And  it  is  a  general  rule  that,  unless  the  defendant  can  spe- 
cifically protect  himself  by  way  of  demurrer  or  plea,  according 
to  the  nature  of  the  case,  he  must  put  in  an  answer.  (^) 

Demurrer. — Where  the  objection  appears  upon  the  face  of 
the  bill,  like  in  all  other  pleadings,  advantage  may  be  taken 
of  it  by  demurrer.  And  this,  whether  the  objection  applies  to 
the  whole  of  the  bill,  or  to  particnlar  discoveries  only,  (-w) 
Unless  it  appears  clearly  by  the  bill  that  the  complainant  is  not 
entitled  to  the  discovery  he  requires,  or  that  the  defendant 
ought  not  to  be  compelled  to  make  it,  a  demm-rer  to  the  dis- 

(«)    2  Barb.  Ch.  Pr.  109  ;  Story's  Eq.  PI.  §  465. 

(«)    Id. 

(«)    lb  ;  Welf.  Eq.  PI.  131. 


BILLS   OF  DISCOVEKY.  273 

Defenses  to  —  Demurrer. 

covery  will  not  hold ;  and  the  defendant,  unless  he  can  protect 
himself  by  a  plea,  must  answer,  (v) 

"Where  the  bill  is  for  discovery  and  relief,  the  defendant  may, 
if  he  pleases,  demur  to  the  relief-  and  answer  to  the  discovery. 
A  demurrer  which  is  good  to  the  relief  generally,  defeats  the 
recovery  also,  (w)  But  he  cannot  demur  to  the  discovery  and 
answer  to  the  relief,  (a?)  In  other  words,  the  defendant  cannot 
demur  to  the  discovery  alone  and  not  to  the  relief,  when  the 
discovery  is  merely  incidental  to  the  relief;  for  that  would  be 
to  demur,  not  to  the  thing  required,  but  to  the  means  by 
which  it  was  to  be  obtained,  (y)  Where  the  discovery  sought 
is  not  a  mere  incident  to  the  relief  prayed,  it  is  doubtful 
whether  a  demurrer  to  the  relief  only  would  not  be  bad.  (0) 

Where  the  soie  object  of  the  bill  is  to  obtain  a  discovery, 
some  ground  of  demurrer,  which,  if  the  bill  prayed  relief, 
would  extend  to  discovery  as  well  as  relief,  will  not  hold. 
Thus,  a  demurrer  to  a  bill  of  discovery  merely  will  not  lie  foi 
want  of  equity  or  for  want  of  parties ;  for  the  complainant 
seeks  no  decree ;  nor  because  the  bill  is  brought  for  the  dis- 
covery of  part  of  a  matter,  for  that  is  merely  a  demurrer 
because  the  discovery  would  be  insuflBcient.  (a) 

Lord  Eedesdale  thus  classifies  the  causes  of  demurrer  to  a 
bill  of  discovery :  First,  that  the  case  made  by  the  bill  is  not 
such  in  which  a  court  of  equity  assumes  a  jurisdiction  to  com- 
pel a  discovery.  Second,  that  the  complainant  has  no  interest 
in  the  subject,  or  no  interest  which  entitles  him  to  call  on  the 
defendant  for  a  discovery.  Third,  that  the  defendant  has 
no  interest  in  the  subject  to  entitle  the  complainant  to  insti- 
tute a  suit  against  him,  even  for  the  purpose  of  discovery. 

iv)    Welf.  Eq.  PL  131 ;  Mitf .  Eq.  PI.  200 ;  2  Barb.  Ch.  Pr.  109. 

(w)  Hodgkin  vs.  Longden,  8  Ves.  R.  3 ;  Coop.  Eq.  PI.  117 ;  2  Barb.  Ch. 
R.  107. 

(a;)    Welf.  Eq.  PI.  183 ;  Morgan  vs.  Harris,  2  Bro.  C.  C.  124. 

(y)  Deare  vs.  Attorney  Ocn.  1  Young  &  Col.  197,  205,  206 ;  Coop.  Eq.  PI. 
117 ;  Hare  on  Disc.  290,  292 ;  Warring  vs.  Mackreth,  Forrest,  Ex.  Rep.  129 ; 
Morgan  vs.  Harris,  2  Bro.  C.  C.  124. 

(s)  Angel  vs.  Angel,  1  Sim.  83,  93  ;  Hare  on  Disc.  6 ;  King  vs.  Hervry,  9 
Sim.  59  ;  2  Barb.  CL.  Pr.  110. 

(a)    Mitf.  Eq.  PI.  200  ;  2  Barb.  Ch.  Pr.  110. 
18 


274  BILLS   OF   DISCOVERY. 

Defenses  to  —  Forms  of  Demurrers  —  Plea. 

Fourth^  although  both  complainant  and  defendant  may  have 
an  interest  in  the  subject,  yet  that  there  is  not  that  privity  of 
title  between  them  which  gives  the  complainant  a  right  to  the 
discovery  required  by  his  bill.  Fifths  that  the  discovery,  if 
obtained,  cannot  be  material ;  and.  Sixth,  that  the  situation  of 
the  defendant  renders  it  improper  for  a  court  of  equity  to 
compel  a  discovery,  (b) 

JVo.  105.     Demurrer  to  a  hill  of  discovery,  where  defendant 
has  no  interest. 

In  the Court 

CD.)  Term,  18— . 

vs.     >  In  Chancery. 

A.  B.  ) 

The  demurrer  of  C.  D.,  defendant,  to  the  bill  of  com- 
plaint of  A.  B.,  complainant. 

This  defendant,  etc.,  {Proceed  as  in  No.  16,  ante,  page  108, 
to  the  asterisk  *)  that  the  complainant  has  not,  in  and  by 
his  said  bill,  stated  or  shown  that  this  defendant  has,  or  pre- 
tends to  have,  any  right,  title  or  interest  in  the  matters  and 
things  complained  of  by  the  said  bill,  or  any  of  them,  or  any 
right  on  the  part  of  the  complainant  to  call  upon  this  defend- 
ant in  a  court  of  equity  for  a  discovery  of  the  said  matters  and 
things,  or  any  of  them.  And  that  for  anything  that  appears 
to  the  contrary  by  the  said  bill,  this  defendant  may  be  ex- 
amined as  a  witness  in  this  suit. 

"Wherefore,  etc.     {Conclude  as  in  JSfo.  16.) 

No.  106.     Demurrer  to  a  hill  of  discovery  for  want  of 

privity. 

{Proceed  as  in  the  last  form  to  the  asterisk  *)  that  the  com- 
plainant has  not.  by  his  said  bill,  shown  such  jDrivity  of  title 
between  him  and  this  defendant,  or  shown  any  such  right  or 
title  as  entitles  him,  in  a  court  of  equity,  to  the  discovery 
from  the  defendant  thereby  sought. 

Wherefore,  etc.    {Conclude  as  in  No.  16,  ante,  page  lOS.) 

Plea. — If  the  objection  to  a  bill  of  discovery  does  not  appear 
upon  the  face  of  it,  the  defendant  must  bring  it  before  the 

(6)    Mitf.  Eq.  PI.  185 ;  3  Barb.  Ch.  Pr.  111. 


BILLS   OF  DISCOVERY.  275 

Defenses  to  —  Plea  —  Form  of  Plea. 


court  by  plea.  (<?)  And  the  grounds  of  objection  to  discovery 
which  may  be  raised  by  plea  are  nearly  the  same  as  those  which 
have  just  been  mentioned  as  causes  of  demurrer.  And  some- 
times the  situation  of  a  defendant  may  render  it  improper  for 
a  court  of  equity  to  compel  a  discovery ;  because  it  may  sub- 
ject him  to  forfeiture,  or  pains  and  penalties ;  or  criminal 
prosecution  ;  or  be  contrary  to  the  confidence  reposed  in  him 
as  a  counsel,  attorney,  or  arbitrator ;  or  because  he  is  a  pur- 
chaser for  a  valuable  consideration,  without  notice  of  complain- 
ant's title,  id) 

To  a  bill  of  discovery  for  the  purpose  of  proceeding  at  law, 
a  plea  of  payment  of  the  money  demanded  by  the  complainant 
does  not  lie.  {e)  So,  when  the  bill  is  for  an  injunction  to 
restrain  the  defendant  from  setting  up  at  law  an  outstanding 
term,  a  plea  of  title  to  the  whole  bill  is  bad.  {f)  So,  to  a  bill 
for  a  discovery  of  an  agreement,  with  an  allegation  to  prevent 
the  operation  of  the  statute;  the  statute  of  frauds  cannot  be 
pleaded. {g) 

A  plea  of  want  of  parties,  does  not  lie  to  a  bill  of  discovery 
merely.  (A)  But  where  relief  is  prayed,  a  plea  of  want  of  par- 
ties goes  both  to  discovery  and  relief,  {i) 

No.  107.     Pica  to  a  hill  of  discovery  that  action  at  law 
having  jurisdiction  is  pending,  etc. 

{As  in  No.  '28,  ante,  jpage  119,  to  the  asterisk  *,  then  pro- 
ceed^ for  plea  to  so  much  and  such  part  of  the  complainant's 
bill  as  seeks  a  discovery  from  this  defendant,  of,  etc.,  this  de- 
fendant pleads  thereto,  and  for  plea  says,  that  long  before  the 
complainant's  bill  was  filed  in  this  court,  and  on,  etc.,  the  com- 
plainant  commenced   a  suit  in  -the  court,    against   this 

(c)  2  Barb.  Ch.  PL  111. 

(d)  2  Barb.  Ch.  Pr.  112;  Mitf.  Eq.  PI.  282 ;  March  vs.  Davidson,  9  Paige, 
Cb.  R.  580 ;  Hayes  vs.  Caldwell,  5  Gilm.  33. 

{e)    Hindman  vs.  Taylor,  Dick.  R.  651. 
(/)   Oait  vs.  Osbaldeston,  5  Mad.  R.  428. 

{g)  Mitf.  Eq.  PI.  265-267  ;  Cottington  vs.  Fletcher,  2  Atk.  R.  156 ;  Welf. 
Eq.  PI.  135;  2  Barb.  Cb.  Pr.  112. 

(A)    Mitf.  Eq.  PI.  280 ;  Welf.  Eq.  PI.  134;  Beames'  PI.  374. 
(t)    Id. ;  Id. ;  Plunket  vs.  Peuson,  2  Atk.  R.  51. 


276  BILLS   OF  DISCOVERY. 

Defenses  to  —  Form  of  Pleas  —  Answer. 

defendant  in  respect  of  the  matters  as  to  which  discovery  is 
sought  by  the  complainant's  bill,  and  that  such  suit  is  still 
depending  in  the  said  court,  which,  as  this  defendant  avers,  is 
a  court  of  competent  jurisdiction  to  afford  the  discovery  which 
the  complainant  seeks  by  his  said  bill.  Therefore,  this  defend- 
ant pleads  the  same  to  the  complainant's  bill,  and  prays  the 
judgment  of  this  court  whether  it  will  hold  plea  upon  and 
enforce  this  defendant  to  answer  the  complainant's  said  bill,  for 
the  cause  aforesaid. 

Wo.  108.     Plea  to  a  hill  of  discovery  that  a  discovery  would 
com/pel  defenda/nt  to  hetray  confidence  as  solicitor. 

{^Commence  as  in  Wo.  S8,  ante,  page  119.) 

This  defendant,  etc.,  {as  in  Wo.  28,  ante,  to  the  asterisk  *,) 
as  to  so  much  of  the  said  bill  as  prays  that  this  defendant  may 
discover  whether,  etc.,  this  defendant  pleads,  and  for  plea  says, 
that  this  defendant  has  no  knowledge  of  the  matters  concern- 
ing which  discovery  is  so  prayed,  or  any  of  them,  except  in 
and  by  means  of  the  confidence  reposed  in  this  defendant  as 
solicitor,  employed  by  E.  F.  in  the  complainant's  bill  named. 

Wherefore,  etc.     {Conclude  as  in  Wo.  '28.) 

Answer. — If  the  defendant  does  not  think  proper  to  defend 
himself  from  the  discovery  by  demurrer  or  plea,  he  has  been 
permitted  by  answer,  to  insist  that  he  is  not  obliged  to  make 
the  discovery,  {j)  In  this  case  the  complainant  may  except  to 
the  defendant's  answer  as  insufficient ;  and  upon  the  hearing 
of  the  exceptions  it  will  be  determined  whether  the  defendant 
is  or  is  not  bound  to  make  the  discovery.  (]c) 

A  defendant  cannot  demur  to  part  and  answer  to  a  part  of 
a  bill  of  discovery ;  (l)  as  the  rule  is  well  settled,  that  if  he 
submits  to  answer,  he  must  answer  fully,  {m)  There  is  no 
rule,  however,  preventing  an  answer  from  being  accompanied 
by  a  plea  or  demurrer,  {n) 

(j)    Mitf.  Eq.  PI.  307  ;  2  Barb.  Ch.  Pr.  113. 

(k)    Id.  ;   Id. ;  2  Ves.  Jr.  87. 

(Z)  Jojies  vs.  Strafford,  3  P.  Wms.  R.  79 ;  Abraham  vs.  Dodgson,  2  Atk. 
R.  157 ;  Dormer  vs.  Fortesque,  2  Atk.  282. 

(m)  Hare  on  Disc.  251  ;  Mazareddo  vs.  Maitland,  3  Mad.  R.  72  ;  PortarU 
ington  vs.  Soulhy,  Sim.  28  ;  Mitf.  Eq.  PI.  307,  note  h  ;  11  Ves.  283. 

(71)    2  Barb.  Ch.  Pr.  114. 


BILLS   OF   DISCOVERY.  277 

Defenses  to  —  Answer  —  Practice,  etc. 

An  answer  to  a  bill  of  discovery  is  entitled  to  no  higher 
consideration  than  the  answer  of  a  party's  own  witness  upon 
th-e  stand,  and  may  be  controverted  in  the  same  way,  althongh 
he  cannot  impeach  the  party  answering,  by  showing  that  he  is 
unworthy  of  belief,  {o) 

The  practice  of  allowing  exceptions  to  answers  to  bills  of 
discovery  to  be  settled  on  the  trial  of  the  action  at  law  prevails 
in  most  of  the  states.  If  the  answer  is  not  strictly  responsive, 
exception  should  be  taken  to  it  on  the  trial,  and  the  court  will 
exclude  such  parts  of  the  answer  as  are  exceptionable,  (p) 

The  entire  answer,  if  responsive,  should  be  received  as  evi- 
dence, and  evidence  should  be  given  or  withheld  as  circum- 
stances may  justify.  (^)  And  in  answering,  the  defendant  has 
a  right  to  state  all  the  circumstances  connected  with  the  mat- 
ter about  which  the  discovery  is  sought,  as  well  as  that  which 
makes  for  as  against  him.  (r) 

Practice  wpon^  generally. — The  case  is  never  brought  to  a 
hearing  upon  a  bill  for  discovery  only,  but  as  soon  as  the  an- 
swer is"  perfected  the  defendant  is  entitled  to  move  for  costs,  (s) 
But  when  the  bill  i-s  for  relief  against  several  defendants,  and 
for  discovery  against  only  one,  he  cannot  make  a  motion  for  his 
costs  until  the  hearing.  The  court  will  not  take  the  labor  of 
ascertaining  whether  under  the  prayer  for  general  relief,  some 
relief  may  not  be  given  against  him.  {f) 

The  general  rule  is,  that  the  complainant  in  a  bill  of  dis- 
covery, upon  obtaining  it,  pays  the  defendant  his  costs,  iu)  And 
costs  are  given  against  the  complainant,  as  a  matter  of  course, 

(o)  Chambers  vs.  Warren,  13  111.  318  ;  Story's  Eq.  PI.  §  319,  note  3  ;  3  Litt, 
R.  879 ;  8  Blackf.  R.  35,  177  ;  8  Paige,  Ch.  R.  580. 

(p)  CJiamUrs  vs.  Warren,  13  111.  318  ;  11  Paige,  Ch.  R.  618 ;  2  Dan.  Ch. 
Pr.  392  ;  4  Dana,  59  ;  5  Ohio,  174 ;  3  Eng.  Ark.  R.  356. 

(g)  Chambers  vs.  Warren,  13  111.  318 ;  5  Ham.  283 ;  Fant  vs.  Miller,  17 
Gratt.Va.  R.  187. 

(r)    Chambers  vs.  Warren,  13  111.  318. 

(«)    King  vs.  Clark,  3  Paige,  Ch.  R.  76. 

(0    Attorney  General  vs.  Birch,  4  Mad.  178. 

{u)  Buryiett  x^.  SnnderH,  4  Johns.  Ch.  R.  504;  McElwet^  t^.  Sutton,  1 
Hill's  Ch.  R.  34  ;  "nop.  Eii.  PI.  01. 


278  BILLS  OF  DISCOVERY. 

Practice  upon,  Generally. 

if  the  charges  of  the  bill  are  denied,  {v)  But  if  the  complain- 
ant, before  filing  his  bill,  asks  a  discovery  from  the  defendant, 
who  refuses  it,  whereby  the  complainant  is  compelled  to  come 
into  equity,  the  defendant  will  not  be  allowed  costs,  {w) 

When  the  answer  is  obtained,  and  the  complainant  has 
secured  all  the  relief  asked,  or  which  the  court  could  give,  the 
bare  dissolution  of  the  injunction  —  which  must  follow  —  is 
equivalent  to  an  order  dismissing  the  bill,  making  a  final  dispo- 
sition of  the  suit,  {x) 

{v)    King  vs.  Clark,  3  Paige,  Ch.  R,  76. 

{w)  McElwee  vs.  Sutton,  1  Hill's  Cli.  R.  34;  King  vs.  Clark,  8  Paige.  Ch. 
R.  76  ;  Burnett  vs.  Sanders,  4  Jolins.  Ch.  R.  504. 

(a;)  Yates  vs.  Monroe,  13  111.  212 ;  Russell  vs.  Clark,  7  Cranch,  69 ;  Avery 
VB.  Holland,  2  Overton,  71 ;  Burnett  vs.  Sanders,  3  Paige,  Ch.  R.  76. 


CHAPTEE  XXII. 

BILL    OF   INTEEPLEADEE. 

Section  1.  Nature  of,  and  When  Pkoper. 

2.  Form  op  Bill. 

3.  Defenses  to.' 

4.  Hearing  and  Decree. 


SECTION  I. 
NATURE    OF,  AND    WHEN    PEOPEE. 

Nature  of. — Where  two  or  more  persons  claim  the  same 
fund  or  property  in  different  titles,  whether  legal  or  equitable, 
from  another,  who  is  in  the  position  of  an  innocent  stakeholder, 
standing  indifferent  between  them,  the  latter,  if  molested  by 
a  suit  actually  brought,  or  threatened,  may  file  his  bill  of  inter- 
pleader, for  the  purpose  of  compelling  the  claimants  to  litigate 
their  rights  at  their  own  expense,  and  thus  protect  himself  from 
all  vexation  and  responsibility,  {a) 

A  bill  of  interpleader  lies  only  where  two  or  more  persons 
claim  the  same  debt  or  duty  from  the  complainant,  by  different 
or  separate  interests.  (J)  It  is  proper  where  suits  are  threat- 
ened ;  (c)  but  will  not  lie  after  a  judgment  at  law  on  the  claim 
in  favor  of  either  or  both  of  the  claimants,  id)    It  is  sufficient 

(a)  Barton's  Suit  in  Eq.  68;  Story's  Eq.  PI.  §  291  ;  Hinde,  Pr.  20;  Coop. 
Eq.  PI.  43  ;  Mitf.  Eq.  PI.  32 ;  Cady  vs.  Porter,  55  Barb.  N.  Y.  463  ;  McHenry 
vs.  Hazard,  45  N.  T.  580 ;  Bedell  vs.  Hoffman,2  Paige,  Ch.  R.  199  ;  Atkinson 
vs.  Manks,  1  Cowen,  691;  Cogswell  vs.  Armstrong,  77  111.  139;  Netvhallvs. 
Kasiens.  70  lil.  156:  Heath  vs.  HxrJess.  73  111.  323. 

(6)  Hayes  vs.  Johnson,  4  Ala.  267 ;  Green  vs.  Mumford,  4  R.  I.  313 ;  Sher- 
man vs.  Partridge,  4  Duer,  646  ;  Adams  vs.  Dixon,  19  Geo.  513  ;  Farley  vs. 
Blood,  10  Foster,  354. 

(c)  Tarhorough  vs.  Thompson,  3  S.  &  M.  291 ;  Hathoway  vs.  Foy,  40 
Mo.  540. 

id)   Id. 


280  BILL   OF   INTEEPLEADER. 

Nature  of,  and  When  Proper. 

if,  of  the  two  adverse  claims  against  the  complainants,  one  of 
the  claims  is  legal  and  the  other  equitable,  [e) 

The  bill  must  show  that  the  complainant  is  a  mere  stake- 
holder, having  no  personal  interest  in  the  controversy ;  (/")  it 
should  not  set  out  the  facts  on  which  the  title  of  the  claimants 
respectively  is  based,  but  ought  only  to  state  in  a  general  way 
the  nature  of  their  claims,  {g) 

A  party  who  is  taxed  in  two  different  towns  for  the  same 
property,  which  is  only  liable  to  be  taxed  once,  and  where  it  is 
doubtful  to  which  town  the  right  to  tax  belongs,  may  file  a 
bill  of  interpleader  to  compel  the  collectoi'S  of  the  tax  to  settle 
the  right  between  themselves,  (h) 

It  is  not  necessary  for  the  holder  of  the  fund  to  file  a  bill  of 
interpleader,  when  he  is  already  a  party  to  a  suit  in  chancery, 
brought  by  one  claimant  against  the  other,  to  settle  the  right 
to  the  fund.  In  such  case,  the  holder  of  the  fund  should 
apply,  by  petition  in  that  suit,  for  leave  to  pay  the  money  into 
court,  to  abide  the  event  of  the  litigation  between  the  other 
parties.  (^) 

To  maintain  a  bill  of  interpleader  the  complainant  must  be 
in  the  possession  of  the  goods  or  thing  in  controversy.  (J) 
But  in  Connecticut  it  has  been  held  that  if  the  complainant 
has  paid  over  money  to  one  of  the  defendants  under  a  claim  of 
right  to  which  he  was  obliged  to  submit,  this  would  not  pre- 
clude him  from  sustaining  the  bill,  {k)  So,  where  a  tenant  has 
paid  rent  to  one  of  the  claimants,  in  ignorance  that  the  title 

(e)  Schyler  vs.  Pelissier,  3  Edw.  Ch.  191 ;  Richards  vs.  Salter,  9  Johns. 
Ch.  R.  445  ;   Yates  vs.  Tisdale,  3  Edw.  Ch.  71. 

(/)  Cady  vs.  Porter,  55  Barb.  N.  T.  4G3  ;  Burton  vs.  Black,  32  Geo.  R.  53 ; 
Hathaway  vs.  Foy,  40  Mo.  540  ;  Temple  vs.  Laicson,  19  Ark.  148. 

{g)  Shaw  vs.  Coster,  8  Paige,  Ch.  339 ;  Lozier  vs.  Van  Saun,  2  Green's 
Ch.  R.  325. 

(h)  M.  &  H.  R.  R.  Co.  vs.  Clute,  4  Paige,  Ch.  R.  384 ;  Thompson  vs.  Ebieta, 
Hopk.  Ch.  R.  272. 

{i)     Badeau  vs.  Rogers,  2  Paige,  Ch.  R.  209. 

( j)  2  Barb.  Ch.  Pr.  118  ;  Burnett  vs.  Anderson,  1  Mer.  405 ;  Martin  vs. 
Maberry,  1  Dev.  Ch.  R.  169. 

(A)    Nash  vs.  Smith,  G  Conu.  R.  421. 


BILL   OF   INTERPLEADER.  281 

Nature  of,  and  Wlien  Proper. 

was  disputed,  he  has  been  allowed  to  compel  the  parties  to 
interplead,  (l) 

A  bill  of  interpleader  will  not  lie  if  the  complainant  himself 
claims  any  interest  in  the  property  in  dispute,  (m)  Nor  where 
the  complainant  denies  any  liability  to  either  of  the  defend- 
ants, and  neithei"  admits  that  anything  is  due  to  one  of  them,  (n) 
nor  offers  to  bring  the  amount  in  dispute  into  court,  (o) 

It  cannot  be  sustained  where  the  complainant  is  obliged  to 
admit  that,  as  to  either  of  defendants,  he  is  a  wrong-doer,  [j?) 
!Nor  where  it  appears,  from  the  bill  itself,  that  there  can  be  no 
doubt  as  to  which  of  the  defendants  is  entitled  to  the  fund  or 
duty  claimed,  {q)  ISTor  by  a  sheriff  against  several  creditors, 
where  a  controversy  arises  as  to  the  application  of  the  money 
in  his  hands,  derived  from  a  sale  of  a  debtor's  property  on  exe- 
cution, (r)  Nor  can  a  sheriff,  who  has  seized,  on  execution,  ■ 
property  claimed  by  a  stranger,  file  a  bill  against  the  claimant 
and  the  parties  to  the  suit,  to  settle  the  question  of  property,  {s) 
And  a  mere  agent,  having  a  fund  in  his  hands,  as  such,  which 
is  claimed  by  a  third  person,  cannot  file  a  bill  of  interpleader ; 
but  if  the  claimant  claims  title  derived  from  the  principal,  the 
bill  will  lie.  {t) 

Where  the  case  presented  by  the  bill  of  intei-pleader  is  not  a 
claim  by  different  parties  to  the  same  fund  or  assets  in  the 
hands  of  the  complainant,  for  which  he  has  a  right  to  ask  them 
to  discharge  him,  and  interplead  between  themselves,  relief 
will  be  denied,  {u)     And  where  no  riglit  to  compel  the  defend- 

(0    Jeio  vs.  Wood,  1  Craig  &  Phil.  185;  2  Barb.  Ch.  Pr.  118. 

(m)  Cadi/ vs.  Potter,  55  Barb.  N.  Y.  463;  Long  ys.  Barker,  85  111.  431; 
Cogswell  vs.  Armstrong,  77  111.  139;  Alleg  vs.  S-iipervisors,  76  III.  101;  Hell- 
man  vs.  Schneider,  75  111.  422. 

(n)   45  Barb.  N.  Y.  R.  657 ;  42  N.  H.  R.  78 ;  2  Story's  Eq.  PL  §  292. 

(o)    lb. ;  lb. ;    McGarrah  vs.  Pmther,  1  Blackf.  lud.  299. 

{p)  Shaw  vs.  Coster,  8  Paige,  Ch.  R.  339;  Quiim.vs.  Green,  1  Ir<'d.  Ch. 
R.  229. 

iq)    M.  cfc  H.  B.  R.  Co.  vs.  Clute,  4  Paige,  Ch.  R.  384. 

(r)    42  N.  H.  Rep.  78 ;  Shaw  vs.  Coster,  8  Paige,  Ch.  R.  339. 

(s)     Quinn.  vs.  Green,  1  Ired.  Ch.  R.  229  ;  Quinn  vs.  Patton,  2  Ired.  Ch.  48. 

{t)     Gibson  vs.  GoltJncaite,  7  Ala.  R.  281. 

{u)  Leddle  vs.  Starr,  20  N.  J.  Eq.  R.  274  ;  Haseltine  vs.  Brickey.  IG  Nratt. 
Va.  116  ;  Tyns  vs.  Rust,  37  Geo.  574;  Dunaher  vs.  Prentiss,  22  Wis.  311; 
4  R.  I.  Rep.  313. 


282  BILL   OF   INTERPLEADER. 


Nature  of,  and  When  Proper. 


ants  to  interplead,  whatever  rights  they  may  claim,  each  defend- 
ant may  demur,  (v) 

To  maintain  a  bill  of  interpleader,  it  is  necessaiy  that  the 
complainant  should  be  uncertain  to  whom  the  right  belongs,  {w) 
And  it  must  be  shown  that  there  are  persons  in  esse  capable 
of  interpleading,  and  setting  up  opposite  claims,  {x) 

Bills  of  interpleader  do  not  ordinarily  lie  except  in  cases  of 
privity  of  some  sort  between  all  the  parties — such  as  privity 
of  estate,  or  title,  or  contract  —  and  where  the  claim  is  all  of  the 
same  nature ;  for  where  the  claimants  assert  their  rights  under 
adverse  titles,  and  not  in  privity,  and  where  their  claims  are  of 
different  natures,  the  bill  cannot  be  maintained,  {y)  Thus,  a 
tenant  liable  to  pay  rent,  may  file  a  bill  of  interpleader,  where 
there  are  several  persons  claiming  title  to  it  in  privity  of  con- 
tract, or  of  tenure,  to  compel  them  to  ascertain  to  whom  it  is 
properly  payable,  (s)  But  if  a  mere  stranger  should  set  up  a 
claim  to  the  rent  by  a  title  paramount,  and  not  in  privity  of  con- 
tract or  tenure ;  or  a  claim  of  a  different  nature  —  such  as  a 
claim  to  mesne  23rofits  in  virtue  of  his  title  paramount  —  no  bill 
of  interpleader  would  lie  on  behalf  of  the  tenant ;  for  the  debt 
or  duty  is  not  of  the  same  nature,  {a) 

But  if  a  person  who  has  a  legal  demand  for  a  sum  of  money 
assigns  his  interest,  the  debtor  may  compel  the  assignor  and 
assignee  to  interplead,  (b)  So  an  auctioneer  may  maintain  a 
bill  of  interpleader  between  a  vendor  and  purchaser,  who  both 
claim  the  deposit  money  at  a  sale ;  he  being  deemed  the  agent 
for  both  parties,  (c) 

{v)    Welf.  Eq.  PI.  152,  153 ;  2  Barb.  Ch.  Pr.  118. 

(w)  2  Barb.  Ch.  Pr.  118  ;  Welf.  Eq.  PI.  152  ;  Barton's  Suit  in  Eq.  69  ;  East 
India  Co.  vs.  Edwards,  18  Ves.  377. 

(a;)  Coop.  Eq.  PI.  46;  Story's  Eq.  PI.  §  295;  Metcalf  vs.  Hervey,  1 
Ves.  248. 

{y)    Coop.  Eq.  PI.  48 ;  Mitf.  Eq.  PI.  142 ;  Dtmgey  vs.  Angove,  2  Ves.  Jr.  304 

(2)  Welf.  Eq.  PI.  152;  Story's  Eq.  PL  §  239;  Loiondise  vs.  Comfort,  18 
Ves.  298  ;  Langston  vs.  Baylstun,  2  Ves.  Jr  101. 

(a)  Story's  Eq.  PI.  ^  239  ;  2  Barb.  Ch.  Pr.  119  ;  Welf.  Eq.  PI.  153  ;  Clark 
vs.  Byne,  13  Ves.  383,  386  ;  Lowe  vs.  Richardson,  3  Mad.  277. 

(&)    East  India  Co.  vs.  Edwards,  18  Ves.  R.  377. 

(c)    Farehrother  vs.  Prattent,  Dan.  Rep.  64;  2  Barb.  Ch.  Pr.  119. 


BILL   OF   INTERPLEADEK.  283 


Form  of  Bill  —  AflBdavit  of  Non-Collusion. 


SECTION   II. 


FOKM    OF    BILL. 


The  bill  must  show  that  each  of  the  defendants'  claims  are 
right;  {d)  the  difficulty  in  which  the  complainant  is  placed, 
and  should  offer  to  bring  the  thing  claimed  into  court ;  for  if 
it  is  not  offered,  the  court,  upon  the  application  of  either  of 
the  defendants,  will  order  the  money  or  property  into  court,  {e) 
And  the  want  of  such  an  offer  is  ground  for  demurrer,  {f) 
But  if  the  claim  is  for  goods,  it  is  not  sufficient  to  ofier  to 
bring  the  value  of  the  goods  into  court,  {g) 

The  bill  prays  that  the  defendants  may  interplead  ;  that  the 
court  may  adjudge  to  whom  the  money  or  thing  belongs,  and 
that  the  complainant  may  be  indemnified.  (A) 

If  the  defendants  have  commenced,  or  thi-eaten  to  com- 
mence, any  proceedings,  except  at  law  by  ejectment,  an 
injunction  must  be  prayed.  {%) 

AjfldcLvit  of  non-collusion. — A  bill  of  interpleader  must 
not  be  brought  in  collusion  with  either  claimant ;  therefore  the 
complainant  is  always  required  to  annex  an  affidavit  that  there 
is  no  collusion  between  him  and  any  of  the  parties,  {j)  And 
a  want  of  that  affidavit  is  clearly  a  cause  of  demurrer.  (Jc) 

(d)  Welf.  Eq.  PI.  155  ;  2  Barb.  Cli.  Pr.  120  :  Mitf.Eq.  PI.  142  ;  Martinius 
vs.  Helmuth,  2  Ves.  &  Bea.  412. 

(e)  TJianet  vs.  Paterson,  Barnard,  247 ;  Fuller  vs.  Gibson,  2  Cox,  24 ;  War- 
rington vs.  Wheatstone,  1  Jac.  R.  202 ;  East  India  Go.  vs.  Edwards,  18  Ves. 
376 ;  Mohawk  &  Hudson  R.  R.  Co.  vs.  Clute,  4  Paige,  Ch.  R.  384 ;  Shaw  vs. 
Coster,  8  Paige,  Ch.  R.  339. 

(/)  2  Barb.  Ch.  Pr.  122  ;  Mitf.  Eq.  PI.  49  ;  Metcalf  vs.  Hervey,  1  Ves.  248 ; 
Hyde  vs.  Warren,  19  Ves.  321. 

(g)    Burnett  vs.  Anderson,  1  Mer.  105. 

(A)    Mitf.  Eq.  PI.  49;  Welf.  Eq.  PI.  156. 

(i)  Metcalf  vs.  Hervey,  1  Ves.  248 ;  Surrey  vs.  Waltham,  2  Anst.  539, 
note ;  Jew  vs.  Wood,  1  Craig  &  Phill.  185. 

(j)  Shaw  vs.  Coster,  8  Paige,  Ch.  R.  339  ;  AtHnson  vs.  Manks,  1  Cowen, 
691 ;  Errington  vs.  Attorney  General,  Bumb.  303 ;  Mitchell  vs.  Hnyne,  8 
Sim.  &  Stu.  63 ;  Cooper  vs.  DeTastel,  1  Taml.  177  ;  Welf.  Eq.  PI.  156 ;  Mitf. 
Eq.  PI.  49,  143 ;  Tyns  vs.  Rust,  37  Geo.  574. 

(k)    2  Barb.  Ch.  Pr.  121 ;  Metcalf  vs.  Hervey,  1  Ves.  248. 


284  BILL   OF  INTERPLEADER. 

Affidavit  of  Non-Collusion  —  Form  of  Bill. 

The  court  will  not  determine  upon  counter  affidavits,  whether 
the  affidavit  denying  collusion  is  false.  (I)  But  where  there  is 
a  suspicion  of  collusion-,  the  court  will  direct  an  inquiry  into 
the  circumstances,  (m) 

JVo.  109.     Bill  of  inter jpleader. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Y"our  orator,  A.  B.,  of,  etc.,  respectfully  represents  to  your 
honor  that  on,  etc.,  at,  etc.,  your  orator  purchased  of  one  C.  D., 
of,  etc.,  one  of  the  defendants  hereinafter  named,  two  horses, 

for  which  lie  promised  to  pay  the  said  C.  D.  the  sum  of 

dollars,  and  gave  his  notes  therefor,  payable  to  the  said  C.  D. 
after  date ;  that  at  the  time  of  such  purchase  the  said  C. 

D.  represented,  and  still  insists,  that  he  was  the  owner  of  said 
property,  and  had  good  right  to  sell  the  same  to  your  orator, 
and  to  accept  the  said  notes  therefor. 

And  your  orator  further  represents,  that  afterwards,  on,  etc., 
one  E.  F.,  of,  etc.,  a  defendant  hereinafter  named,  made  known 
and  claimed,  and  still  insists  and  claims,  that  he,  the  said  E.  F,, 
was  at  the  time  of  said  sale  the  real  owner  of  the  property, 
and  that  the  said  C.  D.  was  not  the  owner  thereof  as  he  pre- 
tended to  your  orator,  but  was  merely  the  agent  for  tlie  said 

E.  F.  in  making  the  said  sale  to  your  orator ;  and  that  the  said 
C.  D.  had  no  authority  to  take  said  notes  in  his  own  name ; 

and  that  the  said  sum  of dollars  was  due  and  paj^able  to 

him,  the  said  E.  F.,  and  not  to  the  said  C.  D. ;  and  then  and 
there  notified  your  orator  in  writing,  not  to  pay  the  amount  of 
said  purchase  money  to  the  said  C.  D. 

Your  orator  further  represents  that  the  said  E.  F.  has  com- 
menced an  action  at  law  against  your  orator,  in  the court 

of  the  county  of ,  to  recover  the  purchase  money  due  on 

said  property,  and  that  the  said  E.  F.  is  now  threatening  to 
bring  suit  against  your  orator,  or  the  said  promissory  note. 

Your  orator  further  represents  that  he  has  always  been  will- 
ing to  pay  the  amount  of  such  purchase  money  to  such  person 
or  persons  as  should  be  lawfully  entitled  to  receive  the  same, 
and  to  whom  he  could  pay  the  same  in  safet}' ;  and  he  hereby 
offers  to  bring  the  same  into  court,  as  the  court  shall  direct, 

(I)    Langston  vs.  Boylston,  2  Ves.  Jr.  101. 
(m)  Dungey  vs.  Angove,  2  Ves.  Jr.  304 


BILL   OF   INTERPLEADER.  285 


Form  of  bill  —  AflSdavit  to. 


And  your  orator  further  represents,  tliat  he  does  not  in  anj 
respect  colhide  with  eitlier  of  tlie  said  named  defendants,  touch- 
ing the  matters  in  controversy  in  this  cause ;  nor  is  he  in  any 
manner  indemnified  by  the  defendants,  or  either  of  them  ;  nor 
has  he  exhibited  this,  his  bill  of  interpleader,  at  the  request  ot 
the  defendants,  or  either  of  them,  but  merely  of  his  own  free 
will  and  to  avoid  being  molested,  vexed  and  harrassed  touching 
the  matters  contained  herein. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.  and  E.  F.,  who  are  made  parties  defendant  to 
this  bill,  may  be  required  to  make  full  and  direct  answers  to 
the  same ;  and  that  the  defendants  may  severally  set  forth  to 

which  of  them  the  said  sum  of does  of  right  belong,  and 

is  payable,  and  how  in  particular  they  make  out  their  claim 
thereto;  and  that  the  defendants  may  interplead,  and  settle  and 
adjust  their  said  demands  between  themselves ;  your  orator 
being  willing  and  desirous,  and  agreeing,  that  the  said  sum 
may  be  paid  to  such  of  them  to  whom  the  same  shall,  in  the 
judgment  of  the  court,  appear  of  right  to  belong ;  and  that 
your  orator  may  be  at  liberty  to  bring  and  pay  the  said  sum 

of dollars  into  this  honorable  court,  which  your  orator 

hereby  offers  to  do,  for  the  benefit  of  such  of  the  defendants 
who  shall  appear  to  be  entitled  thereto,  and  subject  to  the 
further  order  of  the  court ;  and  that  the  defendant,  E.  F.,  may 
be  restrained,  by  the  injunction  of  this  court,  from  proceeding 
against  your  orator  in  the  said  action  at  law  for  the  purchase 
money  of  said  property,  and  that  all  the  defendants  may  be 
restrained  from  commencing  any  action  or  actions  against  your 
orator  for  the  recovery  of  the  said  sum  of dollars,  or  touch- 
ing any  matters  or  things  aforesaid ;  and  that  the  said  C.  D. 
may  be  decreed  to  deliver  the  said  promissory  note  to  your 
orator  to  be  canceled ;  and  that  your  orator  may  have  such 
other  and  further  relief  in  the  premises  as  equity  may  require, 
and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  process  and  injv/riG- 
tion,  ante,  page  73,  and  add  affidavit  as  follows :) 

No.  110.     Affidavit  to  he  annexed  to  hill  of  interpleader. 
State  of  — 


County  of [ 

A.  B.,  of,  etc.,  on  oath  states,  that  he  has  exhibited  his  bill 
of  interpleader  against  the  defendants  0.  D.  and  E.  F.,  named 
in  the  foregoing  bill,  without  any  fraud  or  collusion  between. 


286  BILL   OF   INTERPLEADER. 

Defenses  to  —  Demurrer. 

him  and  the  said  defendants,  or  any  or  either  of  them  ;  and  has 
not  exhibited  his  said  bill  at  the  request  of  the  said  defendants, 
or  either  of  them ;  and  further  states,  that  he  has  exhibited  his 
said  bill  with  no  other  intent  but  to  avoid  being  sued  or  mo- 
lested by  the  said  defendants,  who  are  proceeding  or  threaten 
to  proceed  at  law  for  the  recovery  of  the  funds  mentioned  in 
said  bill.  A.  B. 

Subscribed,  etc. 


SECTION  III. 
DEFENSES    TO. 

Demurrer. — If  the  bill  does  not  show  a  right  to  compel 
the  defendants  to  interplead,  a  demurrer  lies,  in)  And  if  the 
bill  does  not  show  that  each  of  the  conflicting  parties  claims 
a  right,  both  the  defendants  may  demur ;  one,  because  the  bill 
shows  no  claim  of  right  in  him  ;  the  other,  because  the  bill 
showing  no  claim  of  right  in  the  co-defendant,  shows  no  cause 
of  interpleader,  {p)  And  the  want  of  the  affidavit  that  there 
is  not  collusion  is  clearly  a  ground  for  demurrer,  {jp) 

Whenever  an  objection  to  a  bill  of  interpleader  appears 
upon  its  face,  such  objection  should  be  raised  by  demurrer. 
For  if  the  defendants,  instead  of  demurring,  put  in  an  answer 
insisting  that  the  bill  is  improperly  filed,  they  will  only  be 
allowed,  upon  the  dismissal  of  the  bill,  the  costs  to  which  they 
would  have  been  entitled  upon  the  allowance  of  a  demurrer.  (^) 

If  the  controversy  is  concerning  a  sum  of  money,  the  bill 
must  offer  to  bring  it  into  court,  or  it  will  be  demurrable.  (7') 


(71)   Mitf.  Eq.  PI.  142 ;  Well  Eq.  PI.  156 ;  Story's  Eq.  PI.  §  293. 

{0)  Id.  lb.  2  Story's  Eq.  Juris.  §  821  ;  8hcm  vs.  Coster,  8  Paige,  Ch.  R. 
339 ;  Cochrane,  vs.  O'Brien,  2  Jones  &  La.  T.  380. 

{p)  Metcalf  vs.  Harvey,  1  Ves.  248 ;  8Mw  vs.  Chester,  2  Edw.  Ch.  R.  405 ; 
CHbson  vs.  Ooldthwaite,  7  Ala.  281. 

(q)    Shaw  vs.  Coster,  8  Paige,  Ch.  R.  339 ;  2  Barb.  Ch.  Pr.  123. 

(r)  McOarrah  vs  Prather,  1  Blackf.  299 ;  Shaw  vs.  Chester,  2  Edw.  Ch. 
405 ;  but  see  Nash  vs.  Smith,  6  Conn.  421 ;  Coop.  Eq.  PI.  49 ;  Barton's  Suit 
in  Eq.  47,  note  1. 


BILL   OF   INTERPLEADER.  287 

Defenses  to  —  Forms  of  Demurrer  —  Answer. 

N^o.  111.     Demurrer  to  hill  of  interpleader,  for  want  of 
ajfidamt  of  non-collusion. 

{As  in  No.  16.,  ante,  page  108,  to  the  asterisk  (*,)  and  then 
proceed)  that  although  the  complainant's  said  bill  is  on  the 
face  thereof  a  bill  of  intei-pleader,  and  prays  that  this  defendant 
and  the  other  defendant  thereto  may  interplead  together  con- 
cerning the  matters  therein  mentioned,  and  may  be  restrained 
by  injunction  from  proceedings  at  law  against  the  complainant 
touching  such  matters,  yet  the  complainant  has  not  annexed  an 
affidavit  to  his  -said  bill  that  he  does  not  collude  concerning 
such  matters  with  any  of  the  defendants  thereto,  which  affida- 
vit ought,  according  to  the  rules  of  this  honorable  court  as  this 
defendant  is  advised,  to  have  been  made  and  annexed  to  the 
said  bill. 

Wherefore,  etc.     {Conclude  as  in  No.  16.) 

No.  11%.     Demurrer  to  hill  of  interpleader  for  not  shovnng 
any  claim  of  right  in  defendant. 

{As  in  No.  16,  ante,  page  108,  to  the  asterisk  *,  and  then) 
That  the  complainant  has  not,  in  and  by  the  said  bill  of  inter- 
pleader, shown  any  claim  or  right,  title  or  interest  whatsoever, 
in  this  defendant,  in  or  to  the  said ,  in  the  said  bill  par- 
ticularly mentioned  and  described,  in  respect  whereof  this 
defendant  ought  to  be  compelled  to  interplead  with  the  E.  F. 
in  the  said  bill  named,  the  other  defendant  thereto. 

"Wherefore,  etc.     {Goncbude  as  in  No.  16.) 

No.  113.  Demurrer  to  hill  of  interpleader,  for  not  showing 
any  7'ight  in  complainant  to  compel  defendants  to  inter- 
plead. 

{As  in  No.  16,  ante,  page  108,  to  the  asterisk  *,  and  then) 
That  the  complainant  lias  not,  in  and  by  his  said  bill,  shown 
any  right  or  title  Mdiatsoever,  to  compel  this  defendant  and  E. 
F.  the  other  defendant  to  the  said  bill,  to  interplead. 

Wherefore,  etc.     {Conclude  as  in  No.  16.) 

Answer. — The  defendant  may  also  jjut  in  an  answer  ad- 
mitting or  denying  the  facts  stated  in  the  bill.  K  the  defend- 
ants, or  either  of  them,  deny  the  allegations  in  the  bill,  or  set 
up  distinct  facts  in  bar  of  the  suit,   the   complainant   must 


288  BILL   OF   INTERPLEADER 

Defenses  to  —  Answer — Injunction,  etc. 

reply  to  the  answer,  and  close  the  proofs,  in  the  usual  manner, 
before  he  can  bring  his  cause  to  a  hearing,  (s) 

If  one  of  the  defendants,  in  a  bill  of  interpleader,  in  his 
answer,  makes  a  claim  against  the  complainant  beyond  the 
amount  admitted  to  be  due  and  paid  into  court,  and  which 
is  not  claimed  by  the  other  defendant,  he  will  be  permitted  to 
proceed  at  law  to  establish  his  right  to  that  part  of  his  de- 
mand which  is  not  in  controversy  with  the  other  defendant,  {t) 

Where  the  facts  stated  in  the  bill  are  admitted  in  the 
answer,  and  no  new  facts  are  set  up  in  bar  of  the  suit,  the 
cause,  upon  a  replication  being  filed,  is  set  down  for  a  decree 
to  interplead,  before  the  proofs  are  taken  as  between  the 
defendants,  and  the  complainant  is  dismissed  with  his  costs  up 
to  that  time,  paid  out  of  the  fund,  (u)  It  is  said,  however, 
that  it  is  not  usual  for  the  complainant,  in  such  cases,  to  file  a 
replication,  although  it  is  admissible  for  him  to  do  so.  {v) 

Injunction,  etc. — Until  the  complainant  has  brought  the 
money  into  court,  he  cannot  proceed  compulsorily  by  injunc- 
tion, {w)  The  common  order  for  an  injunction  upon  a  bill  of 
interpleader  is,  that  it  issues  upon  the  complainant  paying  the 
money  into  court.  This  is  a  condition  precedent,  and  an  order 
for  an  injunction  not  containing  it  will  be  discharged,  (a?) 

The  injunction  on  an  interpleading  bill  stays  all  proceed- 
ings, (y)  It  may  be  moved  for  at  once  on  payment  of  the 
money  into  court,  and  before  the  time  for  answering  has 
expired,  {z) 

(s)    2  Barb.  Ch.  Pr.  123  ;  Gity  Bank  vs.  Bangs,  2  Paige,  Ch.  570. 

(0     City  Bank  vs.  Bangs,  2  Paige,  Ch.  570. 

iu)  City  Bank  vs.  Bangs,  3  Paige,  Ch.  570  ;  Leonard  vs.  Jamison,  2  Edw. 
Ch.  136. 

iv)  Yates  vs.  Tisdale,  3  Edw.  Ch.  71 ;  see  Atkinson  vs.  Manks,  1.  Cow. 
691. 

(w)  Surry  vs.  WaltJiam,  2  Anst.  539,  note ;  Meux  vs.  Bell,  6  Sims.  175 ; 
Mohawk  &  Hudson  R.  It.  Co.  vs.  Clute,  4  Paige,  Ch.  K.  384 ;  Shaw  vs.  Ches- 
ter, 2  Edw.  Ch.  R.  405. 

{x)  Sieveking  vs.  Behrens,  2  My.  &  Craig,  581 ;  Well  Eq.  PI.  156 ;  2  Barb. 
Ch.  Pr.  123. 

{jj)    Warrington  vs.  Wheatstone,  Jacob,  205. 

(z)    Id.  Vicary  vs.  Widger,  1  Sim  15. 


BILL   OF   INTERPLEADEE.  289 

Form  of  Order  for  Injunction  —  Taking  Bill  as  Confessed. 

No.  lllf,.     Order  for  injunction  on  hill  of  interpleader. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

On  filing  bill  of  interpleader  in  this  canse,  duly  verified,  and 
an  aftidavit  of  non-collusion,  it  is  ordered  that  an  injunction 
issue  pursuant  to  the  prayer  of  said  bill,  upon  the  complainant 
paying  into  the  hands  of  the  register  {or  clerh)  of  this  court, 
the  sum  of dollars  mentioned  in  the  said  bill. 


Taking  hill  as  confessed. — If  one  of  the  defendants  does  not 
appear,  the  bill  may  be  taken  as  confessed  as  to  him.  {a)  And 
where  this  is  done,  if  such  defendant  is  an  absentee,  the  other 
defendant  who  appears,  will  not  be  entitled  to  the  possession  of 
the  fund  until  the  expiration  of  the  time  limited  by  the  statute 
for  the  absent  defendant  to  appear ;  unless  he  gives  security  to 
repay  the  money  in  case  the  absent  defendant  appears  and  estab- 
lishes his  right,  (b) 
"  If  a  defendant  permits  a  bill  of  interpleader  to  be  taken  as 
confessed  against  him,  it  is  an  admission  that,  as  to  him,  the 
bill  was  properly  filed,  and  that  he  has  made  an  improper  claim 
against  the  fund,  {c) 

Where  one  of  the  defendants  is  out  of  the  jurisdiction,  the 
complainant  is  bound  to  bring  him  within  the  jurisdiction  in  a 
reasonable  time ;  and  if  he  omits  to  do  so,  the  other  defendant 
is,  upon  indemnifying  the  complainant  against  those  out  of 
the  jurisdiction,  entitled  to  the  thing  in  dispute.  If  the  com- 
plainant has  used  due  diligence  to  bring  the  party  within  the 
I'urisdiction,  the  court  will  not  permit  such  party  afterwards  to 
proceed  at  law.  {d) 

The  court  will  not  actively  interfere  to  dispose  of  a  fund, 
except  in  favor  of  one  who  appears,  either  from  proof  or  a  pro 
confesso,  to  be  best  entitled,  {e) 

(a)    FarehrotTier  vs.  Prattent,  Dan.  R.  64. 

(6)    2  Barb.  Ch.  Pr.  123-124 ;  Aymer  vs.  Gaunt,  2  Paige,  Ch.  R.  284. 
(c)    Badeau  vs.  Rogers,  2  Paige,  Ch.  209. 

{d)   Stevenson  vs.  Anderson,  2  Ves.  &  Bea.  411 ;  Welt  Eq.  PI.  157. 
(e)    Pillow  vs.  Aldridge,  4  Humph.  287. 
19 


290  BILL   OF   INTERPLEADEE. 

Evidence  —  Hearing  and  Decree. 

Evidence. — In  an  interpleading  suit  the  answer  of  one  of 
the  defendants  may  be  read  against  the  other,  {f)  Upon  the 
hearing  in  snch  suit  evidence  is  admissible  to  show  that  the 
complainant  has  retained  possession  of  the  subject  of  the  suit 
under  an  indemnity  from  some  of  the  defendants,  {g) 


SECTION  V. 

HEAEESTG    AND    DECREE. 

The  court  disposes  of  the  questions  arising  upon  bills  of 
interpleader  in  various  modes,  according  to  the  nature  of  the 
question,  and  the  manner  in  which  it  is  brought  before  the 
court.  It  has  been  already  mentioned  that  if  the  defendants, 
or  either  of  them,  deny  the  allegations  in  the  bill,  or  set  up 
distinct  facts  in  bar  to  the  suit,  the  complainant  must  reply, 
and  close  the  proofs  in  the  usual  manner  before  he  can  bring 
his  cause  to  a  hearing.  But  where  the  defendant  admits  facts 
stated  in  the  bill,  and  on  which  the  right  to  file  such  a  bill 
rests,  and  sets  up  no  new  facts  as  against  the  complainant,  or 
in  bar  of  his  suit,  it  seems  to  be  sufficient  for  him  to  file  a 
replication,  and  to  set  the  case  down  for  a  decree  to  interplead, 
without  waiting  until  the  proofs  are  taken  as  between  the 
defendants.  (A) 

An  interpleading  bill  is  seldom  brought  to  a  hearing.  (^) 
If  a  cause  is  ripe  for  a  decision  between  the  defendants,  as 
well  as  between  them  and  the  complainant,  the  court  settles 
the  conflicting  claims  of  the  parties,  and  makes  a  final  decree 
on  the  first  hearing.  But  if  it  is  not  in  readiness  for  a  de- 
cision as  between  the  defendants,  the  court  merely  decides  that 
the  bill  is  properly  filed,  and  dismisses  the  complainant  with 
his  costs  up  to  that  time,  and  directs  an  action  to  be  brought, 

(/)  Bowyer  vs.  Pitchard,  11  Price,  103. 
{g)    2  Barb.  Ch.  Pr.  124 ;  Statham  vs.  Hall,  Tur.  &  Russ.  30. 
{h)    City  Bank  vs.  Bangs,  2  Paige,  Ch.  R.  570 ;  Welf .  Eq.  PI.  157 ;  2  Barb 
Ch.  Pr.  124. 

(»}    Martinius  vs.  Helmuth,  2  Ves.  &  Bea.  413. 


BILL   OF  INTEEPLEADER.  291 

Hearing  and  Decree  —  Costs. 

or  an  issue,  or  a  reference  to  the  master,  to  ascertain  and  settle 
the  rights  of  the  defendants  to  the  fund  in  controversy.  (J) 

The  parties  defendant  stand  before  the  court  to  litigate  the 
questions  of  right  pending  between  them,  to  the  same  extent, 
as  if  one  had  brought  suit  against  the  other,  predicated  upon 
the  same  matter  and  for  the  same  question,  (k)  And  upon  a 
reference  to  a  master  to  settle  the  rights  of  the  defendants  as 
between  themselves,  the  court  will  give  them  the  benefit  of  a 
discoverj  as  against  each  other,  if  they,  or  either  of  them, 
desire  it.  (J) 

A  decree  that  the  bill  of  interpleader  is  properly  filed  is  the 
only  decree  that  the  complainant  is  interested  in  obtaining,  (m) 
And  there  must  be  a  decree  to  sustain  the  further  proceedings. 
But  if  the  complainant  dies  after  decree,  no  bill  of  revivor  is 
necessary,  (n) 

If  after  answer  by  both  defendants,  one  makes  default  at  the 
hearing,  the  court  will  make  a  decree  on  hearing  the  case  of 
the  defendant  who  appears,  (o) 

If  a  decree  goes  on  to  order  a  reference  to  a  master  by  con- 
sent of  parties,  upon  principles  calculated  to  adjust  the  rights 
of  those  called  upon  to  interplead,  it  will  be  considered  a  sub- 
stitute for  the  ordinary  proceedings  by  actual  interpleader,  (p) 

Costs. — Where  a  bill  of  interpleader  is  properly  filed,  the 
complainant  is,  in  general,  entitled  to  his  costs  out  of  the 
fund,  (q)  They  are  to  be  paid,  in  the  first  instance,  by  the 
party  entitled  to  the  fund,  but  eventually  by  the  other,  (r) 

( j)  Angell  vs.  Eadden,  16  Ves.  203 ;  City  Bank  vs.  Bangs,  2  Paige,  Ch. 
R.  570;  Welf.  Eq.  PI.  157-158;  3  Barb.  Ch.  Pr.  124-125;  Barton's  Suit  in 
Eq.  69. 

{k)    Morton  vs.  Baptist  Oh.  etc.  34  Vt.  309. 

{I)    City  Bank  vs.  Bangs,  2  Paige,  Ch.  570. 

(m)  Atkinson  vs.  Manks,  1  Cow.  691. 

{n)  Jennings  vs.  Nugent,  1  Moll.  134 ;  Anon.  1  Vern.  351. 

{o)    Hodges  vs.  Smith,  1  Cox's  Ca.  357. 

{p)  Atkinson  vs.  Manks,  1  Cow.  691. 

(g)  Aymer  vs.  Oault,  2  Paige,  Ch.  R.  284 ;  Spring  vs.  South  Carolina  Ins 
Co.  8  Wheat.  268 ;  Mason  vs.  Hamilton,  5  Sim.  19 ;  Campbell  vs.  Solomons,  1 
Sim.  &  Stu.  462;  Atkinson  vs.  Manks,  1  Cow.  691. 

(r)   Canfield  vs.  Morgan,  Hopk.  224 ;  Tliompson  vs.  Ebbetts,  Hopk.  272. 


292  BILL   OF   INTERPLEADEE. 

Costs  —  Form  of  Decree,  etc. 

Where  a  bill  is  unnecessarily  filed,  however,  the  complain- 
ant will  not  be  allowed  his  cost  out  of  the  fund,  (s)  He  will 
be  entitled  to  his  costs  only  in  those  cases  where  the  bill  is 
necessarily  and  properly  filed  as  against  both  defendants,  (t) 
But  if  one  of  the  defendants  sufiiers  the  bill  to  be  taken  as  con- 
fessed against  him,  he  will  be  personally  charged  with  all  the 
costs  which  have  been  produced  in  consequence  of  his  unjust 
claim  upon  the  fund,  {u) 

Under  special  circumstances,  the  defendants  will  be  allowed 
to  have  their  costs  respectively,  to  be  deducted  from  the 
fund,  (v) 

JVo.  115.     Interlocutory  decree  on  a  hill  of  ititerplead&r, 
directing  a  reference  to  master. 

[  Caption^  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  coming  on  to  be  heard,  this  day,  upon  the  bill  of 
interpleader  filed  therein,  the  answers  of  the  defendants,  and 
the  replication  thereto ;  and  the  court  having  heard  the  argu- 
ments of  the  counsel  for  the  respective  parties,  and  upon  con- 
sideration thereof,  it  is  ordered,  adjudged,  and  decreed  that  the 
said  bill  of  interpleader  is  properly  filed,  and  that  the  defend- 
ants do  interplead  and  settle  the  matters  in  controversy  in  this 
suit  between  themselves;  and  for  that  purpose  it  is  ordered, 
adjudged,  and  decreed  that  it  be  referred  to  the  master  in  cljan- 
cery  of  this  court,  to  inquire  and  report  which  of  the  defend- 
ants is  entitled  to  the  fund  in  controversy,  and  which  has  been 
deposited  with  the  register  [or  clerk)  of  this  court.  And  if  the 
said  master  shall  be  of  opinion  that  any  two  or  more  of  the 
defendants  are  equitably  entitled  to  share  in  the  same,  that  he 
also  ascertain  and  report  what  portion  of  the  fund  belongs  to 
each.  And  it  is  further  ordered  that  previous  to  the  examina- 
tion of  any  witnesses  before  the  said  master,  either  of  the  j^arties 
may  present  to  such  master,  on  oath,  a  written  statement  of 
his  claim,  and  of  the  facts  and  circumstances  on  which  it  is 
founded  ;  which  statement  shall  be  answered  on  oath  by  all  the 
other  defendants,  to  the  satisfaction  of  the  said  master,  and  with 
the  like  efifect,  as  if  such  answer  was  filed  to  a  bill  of  discovery. 

(s)   Bedell  vs.  Hoffman,  2  Paige,  Ch.  199. 

(t)   Badeau  vs.  Rogers,  2  Paige,  Ch.  R.  209. 

(m)  Badeau  vs.  Rogers,  2  Paige,  Ch.  209 ;  2  Barb.  Ch.  Pr.  136. 

(c)  Atkinson  vs.  Manks,  1  Cow.  691. 


BILL    OF   INTEKPLEADEK.  293 

Form  of  Decree,  etc. 

And  upon  such  reference,  either  part}'  is  to  be  at  liberty  to 
summons  witnesses  and  proceed  before  said  master  in  such 
manner  as  said  master  shall  direct ;  and  that  the  solicitor  of 
each  defendant  have  notice  of  all  proeeedincjs  before  the  said 
master.  And  it  is  further  ordered,  adjudged,  and  decreed,  that 
the  complainant  be  dismissed  with  his  costs  of  this  suit  up  to 
this  time,  to  be  taxed,  to  be  paid  out  of  the  said  fund  in  court. 
And  this  court  reserves  the  consideration  of  all  questions  of 
costs  as  between  the  defendants,  and  all  other  questions  and 
directions,  until  the  coming  in  of  the  master's  report ;  but  with 
liberty  to  either  party  to  apply  for  such  other  instructions  or 
directions  to  the  master  as  may  be  necessary  or  proper,  pending 
the  reference,  {w) 

{w)    See  City  Bank  vs.  Bangs,  2  Paige,  Ch.  R.  573  ;  Seaton  on  Decrees, 
889. 


CHAPTER  XXIII. 

BILLS   AND  PETITIONS  TO  PERPETUATE  TESTIMONY. 

Section  1.  Natuke  of  the  PROCEEDrsros. 

2.  Frame  of  a  Bill  to  Perpetuate  Testimony 

3.  Defenses,  and  Proceedings. 

4.  Petition  to  Perpetuate  Testimony. 


SECTION  I. 

NATURE    OF   THE    PROCEEDINGS, 

A  bill  to  perpetuate  testimony  is  used  where  there  is  reason 
to  fear  that  the  evidence  necessary  to  establish  facts,  which  will 
probably  become  the  subject  of  controversy  at  a  future  period, 
may  become  lost  by  the  death,  or  absence  from  the  country  of 
a  material  witness,  {a)  But  such  bills  will  not  generally  be 
entertained  for  the  purpose  of  being  used  upon  a  future  occa- 
sion, unless  where  it  is  absolutely  necessary  to  prevent  a  failure 
of  justice.  (&)  If  it  be  possible  that  the  matter  in  question  can, 
by  the  party  who  tiles  the  bill,  be  made  the  subject  of  imme- 
diate judicial  investigation,  no  such  is  entertained.  (<?) 

SECTION   II. 
FRAME    OF    A    BILL    TO    PERPETUATE    TESTIMONY. 

The  bill  should  state  all  the  material  facts  which  are  necec- 
sary  to  maintain  the  jurisdiction.  It  must,  in  the  first  place, 
state  the  subject  matter,  touching  which  the  complainant  is 
desirous  of  giving  evidence,  {d)     Thus,  for  example,  if  the 

(a)  Barton's  Suit  in  Eq.  73  ;  Story's  Eq.  PI.  §  300 ;  Welf.  Eq.  PI.  139  ;  3 
Barb.  Cli.  Pr.  136 ;  1  Coop.  Eq.  PI.  52 ;  Mitf.  Eq.  PI.  148. 

(6)   Bellamy  vs.  Jones,  8  Ves.  31 ;  Shelby  vs.  ,  13  Ves.  56 ;  see  also 

Angell  vs.  Angell,  1  Sim.  &  Stu.  89. 

(Cj     Van  Hey.  Eq.  Drafts.  358. 

{d)  Mitf.  Eq.  PI.  51 ;  Barton's  Suit  in  Eq.  74 ;  Allan  vs.  Allan,  15  Ves. 
130  ;  Knight  vs.  Knight,  4  Mad.  R.  1. 


PEKPETUATION  OF  TESTIMONY.  295 

Frame  of  Bill,  etc. 

object  of  the  bill  is  to  perpetuate  the  testimony  of  the  wit- 
nesses to  a  deed  respecting  real  estate,  the  deed  should  be 
properl_y  described,  and  the  names  of  the  witnesses,  who  are  to 
prove  the  same,  be  set  forth,  {e)  And  if  the  object  of  the  bill 
is  to  perpetuate  the  evidence  of  witnesses  to  facts  in  pais,  it  is 
not  sufficient  to  state  generally,  that  they  can  give  evidence  as 
to  certain  facts ;  but  the  bill  must  state  specially,  what  these 
facts  are.  (/") 

The  bill  must  show  an  interest  on  the  part  of  the  complain- 
ant in  the  subject  matter  sufficient  to  entitle  him  to  the  aid  of 
the  court ;  for  unless  he  has  some  interest,  he  is  not  entitled  to 
maintain  the  bill.  (</)  A  mere  expectancy,  however  strong,  is 
not  sufficient ;  but  the  party  must  have  a  positive  interest.  (A) 

It  is  also  indispensable  to  a  bill  of  this  kind,  that  it  should 
state  that  the  defendant  has,  or  pretends  to  have,  a  title,  or  that 
he  claims  an  interest  to  contest  the  title  of  the  complainant  in 
the  subject  matter  of  the  proposed  testimony,  (i)  For  unless 
the  defendant  has,  or  claims  some  such  interest,  it  is  utterly 
fruitless  to  perpetuate  the  testimony  ;  since  it  can  have  na 
operation  on  those  who  are  real  parties  in  interest. 

It  must  also  be  shown  that  there  is  some  ground  of  necessity 
for  perpetuating  the  evidence ;  as  that  the  facts  to  which  the 
proposed  testimony  relates  cannot  be  immediately  investi- 
gated in  a  court  of  law  ;  or  if  they  can  be  so  investigated,  that 
the  sole  right  of  action  belongs  exclusively  to  the  other  party  y 
or,  that  the  other  party  has  interposed  some  impediment  to^ 
an  immediate  trial  of  the  right  in  the  suit  at  law,  so  that  before 
the  investigation  can  take  place,  the  evidence  of  a  material  wit- 
ness is  likely  to  be  lost  by  his  death  or  departure  from  the 

(e)    Story's  Eq.  PI.  §  300. 

(/)  Id. ;  Kmght  vs.  Knight,  4  Mad.  R.  8,  10 ;  2  Barb.  Ch.  Pr.  137. 

(g)  Coop.  Eq.  PI.  52 ;  2  Story's  Eq.  Juris.  §  1511  ;  Lord  Dersley  vs.  Mtz- 
Hardinga  Berkley,  6  Ves.  251 ;  Allaii  vs.  Allan,  15  Ves.  180. 

(A)  Id.  lb.  ;  1  Fowler,  Exch.  Pr.  384 ;  Mitf.  Eq.  PI.  51 ;  Coop.  Eq.  PI. 
52-54  ;  Saekville  vs.  Ayleworth;  1  Vern.  105. 

{i)  Mitf.  Eq.  PL  53  ;  Story's  Eq.  PI.  §  302  ;  Barton's  Suit  in  Eq.  74 ;  Coop. 
Eq.  PI.  56;  1  Mont.  Eq.  PI.  271;  Shirley  vs.  Ferrers,  3  P.  Wms.  R.  77 ;. 
Brandleigh  vs.  Ord,  1  Atk.  577. 


296  PERPETUATION  OF  TESTIMONY. 

Frame  of  Bill,  etc. 

country,  {j)  In  the  former  case  tlie  bill  must  allege  that  the 
complainant  is  in  possession  of  the  property,  or  the  right,  with- 
out any  disturbance  by  the  other  party,  upon  which  an  action 
at  law  can  be  founded,  (k)  In  the  latter  case  the  bill  must 
allege  the  specific  facts  on  which  the  complainant  puts  his  case ; 
and  also  that  the  witnesses  are  old  or  infirm,  or  in  ill  health, 
and  not  likely  to  live,  {l)  Without  such  allegations  the  bill 
will  be  clearly  demurrable.  (?/i) 

Where  a  bill  is  framed  on  the  ground  that  the  testimony 
of  a  witness  may  be  lost  by  his  death  or  departure  from  the 
country,  before  the  case  can  be  investigated  in  a  court  of  law, 
it  seems  proper  also,  in  order  to  avoid  objection,  to  annex  to 
it  an  affidavit  of  the  circumstances  by  which  the  evidence 
intended  to  be  perpetuated  is  in  danger  of  being  lost,  {n)  But 
where  the  bill  is  sworn  to  it  seems  that  it  will  be  sufficient  to 
state  the  circumstances  in  the  bill ;  and  in  that  case  no  affidavit 
will  be  necessary,  (o) 

The  prayer  of  the  bill  requires  attention.  It  should  pray 
leave  to  examine  witnesses  touching  the  matters  stated,  to  the 
end  that  their  testimony  may  be  preserved  and  perpetuated,  {p) 
It  should  also  pray  the  proper  process,  but  it  should  not  pray 
that  the  defendant  may  abide  such  order  and  decree  as  the 
court  shall  think  proper  to  make,  for  that  will  turn  it  into  a 
bill  for  relief,  which  is  inconsistent  with  the  nature  of  a  bill 

(jO  1  Mitf.  Eq.  PI.  52,  148 ;  JSTortJi  vs.  Grai/,  1  Dick.  R.  14,  55 ;  Ch.  Pr. 
531 ;  Story's  Eq.  PL  §  303  ;  Anr/ell  vs.  A7igeU,  1  Sim.  &  Stu.  83. 

(k)    Coop.  Eq.  Pi.  53;  Wyatt,  Pr.Reg.  74;  GaniiYs.  Cann,  1  P.Wms.568. 

{I)  Mitf.  Eq.  PI.  52 ;  Story's  Eq.  PI.  §  303  ;  1  Sim.  &  Stu.  93  ;  Mtzhugh 
vs.  Lee,  Amb.  G5. 

(7/i)  Story's  Eq.  PI.  §  303  ;  see  Pearson  vs.  Ward,  1  Cox,  177. 

in)  Earl  of  Suffolk  vs.  Green,  1  Atk.  R.  450  ;  2  Barb.  Cb.  Pr.  141  ;  Mitf. 
Eq.  PI.  52,  150 ;  Story's  Eq.  PL  g  304 ;  Phillips  vs.  Caretc,  1  P.  Wms.  R.  117 ; 
Shirley  vs.  Ferrers,  3  P.  Wms.  R.  77. 

(o)    2  Barb.  Cb.  Pr.  141. 

(p)  Mitf.  Eq.  PL  51 ;  Story's  Eq.  PL  J^  306  ;  2  Barb.  Cb.  Pr.  141 ;  Coop. 
Eq.  PL  52. 


PERPETUATION  OF  TESTIMONY.  297 

Form  of  Bill,  etc. 

to  perpetuate  testimony,  {q)     If  tlie  bill  should  pray  relief,  it 
will  be  demurrable,  and  may  be  dismissed  for  this  cause,  (r) 

Care  should  be  taken  not  to  mix  up  in  the  bill  matters 
which  may  require  very  d  liferent  decretal  orders  as  to  the  pub- 
lication of  the  testimony,  otherwise  it  will  be  demurrable,  {s) 

JVo.  116.     Bill  to  i^erjyehbate  testimony. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  one  C.  D.,  late  of,  etc.,  was  in  his  lifetime,  and  at 
the  time  of  his  death,  seized  in  fee  simple  of  the  following  de- 
scribed real  property,  to  \\\\. :  {Here  insert  description  /)  and 
being  of  sound  mind  and  memory,  made  his  last  will  and 
testament  in  writing,  which  was  duly  executed  and  attested  by 
E.  F.  and  G.  H.,  of,  etc.,  two  credible  persons,  which  said 
will,  with  the  attestation  thereof,  is  in  the  words  and  figures 
following,  to-wit :  {Here  set  forth  copy  of  the  will.,  etc.  /)  as  by 
the  said  will,  when  produced  in  court,  will  more  fully  appear. 

Your  orator  further  represents  that  afterwards,  on,  etc.,  the 
said  C.  D.  departed  this  life,  without  revoking  or  altering  his 
said  will,  or  any  part  thereof;  whereupon  your  orator  by  virtue 
of  the  said  will,  became  entitled  in  fee  simple  to  all  of  the  said 
described  premises,  subject  to  the  payment  of  so  much  of  the 
debts  and  funeral  expenses  of  the  said  C.  D.  as  his  personal 
estate  may  fall  short  of  paying ;  and  your  orator  accordingly, 
soon  after  the  death  of  the  said  C.  D.  entered  into  possession 
of  the  said  premises,  and  now  has  the  exclusive  use  and  control 
of  the  same,  with  the  rents  and  profits  thereof.  And  your 
orator  well  hoped  that  he  and  his  heirs  and  assigns  would  have 
been  permitted  to  enjoy  the  same  quietly,  without  any  inter- 
ruption from  any  person  whomsoever.  But  now  so  it  is,  may 
it  please  your  honor,  that  E.  D.,  of,  etc.,  the  defendant  herein- 
after named,  who  claims  to  be  a  brother  and  heir  at  law  of  the 

[q)  Rose  vs.  Oannell,  3  Atk.  R.  439 ;  Vaughan  vs.  Fitzgerald,  1  Sch. 
&  Lef.  316  ;  Jerome  va.  Jerome,  5  Conn.  R.  352 ;  Coop.  Eq.  PI.  52 ;  Stoi-y's  Eq 
PI.  §  306. 

(r)  Dalton  vs.  Thompson,  1  Dick.  R.  98  ;  Story's  Eq.  PI.  §  30(5 ;  2  Barb. 
Ch.  Pr.  142. 

is)  Dew  vs.  Clark,  1  Sim.  &  Stu.  R.  108 ;  Story's  Eq.  PL  §  306  ;  2  Barb. 
Ch.  Pr.  142 ;  Well  Eq.  PL  140. 


298  PEKPEIUATIUX   OF  TESTIMONY. 

Form  of  Bill  —  Defenses,  and  Proceedings. 


said  C.  D.,  pretends  that  the  said  C.  D.  did  not  make  and  exe- 
cute such  hist  will  and  testament  in  writing,  or  that  he  was  not 
of  sound  mind  and  memory  at  the  time  of  the  execution  there- 
of, or  that  the  same  was  not  executed  in  the  form  and  manner 
required  by  law  ;  and  therefore  he  insists  that  }our  orator  has 
no  right  or  title  to  the  said  premises,  or  any  part  of  the  same, 
but  that  on  the  death  of  the  said  C.  D.  the  same  descended 
unto  the  said  E.  D.,  as  heir  at  law  of  the  said  C.  D.  "Whereas 
your  orator  charges  the  contrary  of  such  pretenses  to  be  true. 
Yet  the  said  E.  JD.  refuses  to  contest  the  validity  of  the  said 
will  during  the  lifetime  of  the  subscribing  witnesses  thereto, 
and  he  threatens  that  he.  will  hereafter  dispute  the  validity  of 
the  said  will  when  all  the  subscribing  witnesses  are  dead,  or 
gone  out  of  the  country,  whereby  your  orator  and  his  heirs  and 
assigns  will  be  deprived  of  the  benefit  of  their  testimony. 

Y'^our  orator  further  represents,  that  the  said  E.  F.  and  G.  H., 
the  subscribing  witnesses  to  the  said  last  will  and  testament, 
are  both  aged  and  infirm,  both  being  above  the  age  of  seventy 
years,  and  are  not  likely  long  to  live,  and  your  orator  is  in 
danger  of  being  deprived  of  the  benefit  of  their  testimony  in 
relation  to  the  execution  of  said  will,  and  the  state  of  the  mind 
and  memory  of  the  said  C.  D.  deceased. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in  the 
premises,  except  in  a  court  of  equity ;  and  to  the  end  that  the 
said  E.  D.,  who  is  made  a  part}^  defendant  t6  this  bill,  ma}^  be 
required  to  make  full  and  direct  answer  to  the  same,  and  show 
why  your  orator  should  not  have  the  testimony  of  the  said 
witnesses  E.  F.  and  G.  H.  perpetuated ;  and  that  your  orator 
may  be  at  liberty  to  examine  the  said  witnesses  witii  respect  to 
the  execution  and  attestation  of  the  said  will,  and  the  sanity 
of  mind  of  the  said  C.  D.  at  the  time  of  the  making  of  the 
same,  so  that  their  testimony  may  be  perpetuated  and  pre- 
served. 

May  it  please  your  honor,  etc.  {Pray  process  as  in  No.  86, 
ante,  page  W9,  and  add  affidavit,  as  iji  No.  118,  post,  301.) 


SECTION  III. 
DEFENSES.    AND    PKOCEEDINGS. 

The  defense  to  a  bill  to  perpetuate  testimony  is  the  same  a8 
in  other  eases,  by  demurrer,  plea  or  answer,  according  to  the 
nature  of  the  case.  To  a  bill  to  prove  a  will,  and  to  perpetuate 
testimony,  the  defendant  may  plead  that  he  is  a   purchaser 


PEIiPETUATION   OF  TESTIMONY.  299 

Defenses  to  Bill  —  Demurrer — Answer. 

without  notice  of  the  will,  and  insist  that  if  the  complainant 
has  a  title,  he  may  immediately  proceed  at  law.  {t) 

Demurrer. — A  demurrer  will  seldom  lie  to  a  hill  of  this 
natnre.  (w)  But  if  it  clearlj'  appears  that  the  jurisdiction  does  not 
arise  upon  the  case  made  by  the  bill,  a  demurrer  will  hold,  (-v) 
As  where  specific  allegations  of  the  facts  upon  which  the  com- 
plainant claims  the  aid  of  the  court  are  not  made  by  the  bill,  iw) 
So  if  a  bill  prays  relief  it  will  be  demurrable,  (a?)  But  it  has 
been  held  that  where  relief  and  discovery  prayed  by  the  bill 
were  both  demurrable,  the  defendant  could  not  demur  to  so 
much  of  the  bill  as  sought  to  perpetuate  testimony.  (^) 

If  the  bill  contains  matters  which  may  require  very  different 
decretal  orders  as  to  the  publication  of  the  testimony,  it  will  be 
liable  to  demurrer.  (2) 

Answer. — An  answer  may  be  filed  as  in  other  cases.  The 
complainant  compels  the  defendant  to  answer,  and  the  suit  is 
proceeded  with  in  the  usual  way,  by  filing  a  replication  and 
issuing  a  commission  for  the  examination  of  witnesses.  («) 

If  the  cause  should  be  improperly  brought  to  a  hearing,  it 
will  be  dismissed.  But  the  depositions  taken  will  still  be  used 
as  evidence,  even  though  the  bill  is  dismissed.  (Z>) 

A  bill  to  perpetuate  testimony  is  never  brought  to  a  hear- 
ing, (c) 

(f)  BecJdnall  vs.  Arnold,  1  Vern.  554 ;  Welf.  Eq.  PI.  146 ;  Beames  on 
Pleas,  241 ;  2  Barb.  Ch.  Pr.  142. 

{u)  Mitf.  Eq.  PI.  149  ;  2  Barb.  Ch.  Pr.  139, 142  ;  Welf.  Eq.  PI.  146  ;  Tirrell 
vs.  Cox,  1  Rol.  Abr.  383. 

(«)    Mitf.  Eq.  PI.  149,  150  ;  2  Barb.  Ch.  Pr.  142 ;  Welf.  Eq.  PI.  146. 

{w)  Lord  North  vs.  Lady  Gray,  Dick.  R.  14;  Angell  vs.  Angell,  1  Sim.  & 
Stu.  89. 

(x)  Rose  vs.  Oannell,  Atk.  439  ;  Dalton  vs.  Thomson,  Dick.  R.  98 ;  Jerome 
VB.  Jerome,  5  Conn.  352. 

{y)  Thorpe  vs.  Macauley,  5  Mad.  218 ;  Shackell  vs.  Macauley,  2  Sim.  & 
Stu.  79. 

(«)     Story's  Eq.  PI.  §  306 ;   Vaughan  vs.  Fitzgerald,  1  Sch.  &  Lef.  316. 

(a)    1  Smith,  Ch.  365 ;  Welf.  Eq.  PI.  147  ;  2  Barb.  Ch.  Pr.  148. 

(6)  Hall  vs.  Huddeston,  2  P.  Wms.  R.  162,  163 ;  Anon.  2  Ves.  R.  497 ; 
Anon.  Amb.  R.  237 ;  2  Barb.  Ch.  Pr.  143. 

(c)     Vaughan  vs.  Fitzgerald,  1  Sch.  &  Lef.  316 ;  2  Barb.  Ch.  Pr.  143. 


300  PEEPETUATION  OF  TESTIMONY. 

Petitions  under  the  Statute  —  When  Proper  —  Petition. 

In  most  of  the  states  bills  to  perpetuate  testimony  are 
seldom  resorted  to  at  the  present  day.  The  statutes  of  the 
different  states  have  generally  given  a  much  less  expensive 
and  more  expeditious  method  of  proceeding  to  accomplish 
the  object.  In  Illinois  the  proceeding  is  by  petition,  as  we 
shall  presently  see. 

SECTION   IV. 
PETITION    TO    PERPETUATE    TESTIMONT. 

The  statute  of  Illinois  has  provided  a  mode  of  perpetuating 
testimony  by  petition,  which,  by  reason  of  its  being  more 
expeditious  and  less  expensive  than  proceedings  by  bill,  will 
be  generally  resorted  to  in  this  state.  These  statutory  pro- 
visions, while  they  are  no  doubt  intended  as  a  substitute  for 
a  bill  to  perpetuate  testimony,  do  not  seem  to  have  repealed 
that  mode  of  procedure  ;  and  it  may  be  that  a  party  may  pro- 
ceed in  either  mode  at  his  option.  The  statutory  remedy  is, 
however,  recommended. 

In  what  cases  proper. — "  A  petition  to  perpetuate  the  remem- 
brance of  any  fact,  matter  or  thing,  which  may  relate  to  the 
boundaries  or  improvements  of  land ;  name  or  former  name  of 
water-courses ;  the  name  or  former  name  of  any  portion  or  dis- 
trict of  country  ;  regarding  the  ancient  customs,  laws  or  usages 
of  the  inhabitants  of  any  part  of  this  country,  as  far  as  the  same 
may  relate  to  the  future  settlement  of  the  land  claims ;  or  touch- 
ing the  marriage  or  pedigree  of  any  person  or  persons,  or  any 
other  matter  or  thing  necessary  to  the  security  of  any  estate, 
real,  personal  or  mixed,  or  any  private  right  whatever,  may  be 
filed  in  the  circuit  court  of  the  proper  county  to  take  the  depo- 
sitions of  witnesses  whose  evidence  is  sought  to  be  perpetu- 
ated." {d) 

The  petition. — "  The  petition  must  be  supported  by  affida- 
vit, and  must  set  forth,  briefly  and  substantially,  the  interests 
■)f  the  petitioner,  his  claim  or  title  in  or  to  the  subject  concem- 

((/)    Kev.  S:.ii.  vl«T4j  494;  Rev.  Stat.  (1877)  481. 


PERPETUATION   OF  TESTIMONY.  301 


Form  of  Petition  —  Affidavit. 


ing  which  lie  desires  to  perpetuate  evidence,  the  fact  intended 
to  be  established,  and  the  names  of  all  other  persons  interested 
or  supposed  to  be  interested  therein,  and  whether  there  are  any 
persons  interested  therein  whose  names  are  unknown  to  the 
petitioner,  and  the  name  of  the  witness  proposed  to  be  exam- 
ined." {e) 

No.  117.     Petition  to  perpetuate  testimony. 

To  the  Honorable ,  Judge  of  the  Circuit  Court  of  the 

County  of -,  in  the  State  of  Illinois : 

The  petitioner,  A.  B.,of,  etc.,  respectfully  represents  unto  your 
honor  that,  etc.  {Here  set  forth.,  hriejkj  and  stibstantially,  the 
ifnterest  of  the  petitioner.)  That,  etc.  {Here  date  the  substan- 
tial facts  intended  to  he  established^  That,  etc.  {Here  insert 
the  name  and  interest  of  the  defendant.)  That,  etc.  {If  any 
person  whose  name  is  unknown  is  interested,  here  inseH  the 
fact,  and  how.)  That  the  petitioner  can  prove  by  H.  G.  and 
U.  S.  G.,  of,  etc.,  that,  etc.  {Here  insert  xohat  the  petitioner 
expects  to  prove  by  the  witnesses.)  And  that,  etc.  {It  may  be 
well  here  to  state  the  necessity  for  perpetuating  the  testimony.) 

The  petitioner  therefore  prays  that  a  dedimus  potestatem  or 
commission  may  issue  out  of  this  honorable  court,  to  be  directed 
to  any  competent  and  disinterested  person  as  commissioner, 
or  to  some  judge,  commissioner  of  deeds,  master  in  chancery, 
notary  public,  clerk  of  a  court,  or  justice  of  the  peace,  in  the 

county  of ,  where  such  witness  resides,  authorizing  him  or 

them  to  take  the  deposition  of  such  witnesses. 

L.  M.,  Solicitor.  A.  B. 

No.  118.     Affidavit  to  he  attached  to  petition  to  perpetuate 
testimony. 
State  of  iLLEsrois,  ) 

County  of \ 

On  this day  of A.  D.  18 — ,  before  me  personally 

appeared  the  above  named  A.  B.,  and  made  oath  that  he  has 
read  the  above  and  foregoing  petition,  subscribed  by  him,  (or 
heard  it  read,)  and  knows  the  contents  thereof;  and  that  the 
same  is  true  of  his  own  knowledge,  except  as  to  the  matters 
which  are  stated  therein  to  be  on  his  information  or  belief,  and 
that  as  to  those  matters  he  believes  it  to  be  true. 

E,.  S.,  Clerk  of  the  Circuit  Court,  etc, 

(e)    Rev.  Stat.  (1874)  494;  Rev.  Stat.  (1877)  481. 


302  PERPETUATION   OF  TESTIMONY. 


Petitions  under  the  Statute  —  Proceedings  upon. 


Commission  to  take  deposition. — "  Upon  filing  the  petition, 
supported  by  affidavit,  the  petitioner  may  sue  out  from  the 
circuit  court  a  dedinnus  'potestatem  or  commission,  directed  to 
any  competent  and  disinterested  person  as  commissioner,  or  to 
any  judge,  commissioner  of  deeds,  master  in  chancery,  notary 
public,  clerk  of  a  court,  or  justice  of  the  peace  in  the  county 
in  which  such  witness  resides,  or  in  which  the  testimony  is  to 
be  taken,  authorizing  him,  or  them,  to  take  the  deposition  of 
such  witness. 

"  Several  commissions  may  be  issued  upon  the  same  petition, 
to  different  commissioners  or  officers,  either  within  or  without 
the  state,  to  take  the  testimony  of  different  witnesses,  or  wit- 
nesses residing  in  different  places,  or  the  same  commissioners 
or  officers  may  proceed  from  place  to  place  to  take  the  same." 

Docketing  petition. — "Upon  the  filing  of  the  petition  it  is 
required  to  be  docketed  by  the  clerk,  as  other  cases  in  equity ; 
the  petitioner  to  be  designated  as  plaintiff,  and  the  persons 
stated  to  be  interested,  as  defendants ;  and  the  parties  whose 
names  are  unknown  to  be  designated  'as  '  unknown  owners.'  " 

Notice  to  parties  hefore  taking  testimony. — "  Before  taking 
the  testimony  of  a  witness,  the  person  suing  out  such  com- 
mission shall  give  to  each  and  every  person  known  to  be  inter- 
ested in  the  subject  matter  of  such  testimony,  or  his  attorney, 
or,  if  a  minor,  his  guardian,  or,  if  he  has  no  guardian,  or  if 
his  guardian  is  interested,  to  such  guardian  at  litem  as  shall  be 
appointed  by  the  court,  or  to  his  or  her  conservator,  if  he  or 
she  has  one,  two  weeks'  notice,  in  writing,  of  the  time  and 
place,  when  and  where  the  testimony  will  be  taken,  which 
notice  shall  state  when  and  where  the  petition  was  filed,  the 
names  of  the  parties  and  witnesses  mentioned  in  the  petition, 
and  a  short  statement  of  the  subject  matter  concerning  which 
the  testimony  is  to  be  taken. 

"  Notice  to  non-resident  parties,  or  such  as  cannot  be  found 
so  as  to  be  personally  served,  and  to  unknown  owners,  may  be 
given  in  the  same  manner  as  is  provided  for  notifying  non- 
resident parties  in  suing  out  a  commission  to  take  testimony  in 
a  case  pending. 


PERPETUATION  OF  TESTIMONY.  303 

Petitions  under  the  Statute  —  Proceedings  upon. 

"  When,  in  the  opinion  of  the  court,  no  sufficient  provision  is 
made  by  law  for  giving  notice  to  parties  adversely  interested, 
the  court  may  order  such  reasonable  notice  to  be  given  as  it 
shall  deem  proper."  (/') 

Manner  of  taking  testimony. — Every  person  who  may  think 
himself  interested  in  the  subject  of  a  deposition  about  to  be 
taken,  may  attend,  by  himself  or  his  attorney,  at  the  time  and 
place  of  taking  such  testimony,  and  may  examine  and  cross- 
examine  such  deponent;  and  all  such  questions  as  may  be  pro- 
posed, together  with  the  answers  thereto  ])y  the  witness,  shall 
be  reduced  to  writing  in  the  English  language,  as  near  as  pos- 
sible in  the  exact  words  of  such  deponent,  which  said  questions 
and  answers,  when  reduced  to  writing  as  aforesaid,  shall  be  dis- 
tinctly read  over  to  the  witness ;  and  if  found  to  be  correct, 
shall  be  signed  by  him  in  the  presence  of  the  commissioner  or 
officer  before  whom  the  same  is  taken,  who  shall  thereupon 
administer  an  oath  or  affirmation  to  such  witness,  as  to  the 
truth  of  the  deposition  so  taken  as  aforesaid,  and  shall  annex 
at  the  foot  thereof  a  certificate,  subscribed  by  such  commis- 
sioner or  officer,  stating  that  it  was  sworn  to  and  signed  by  the 
deponent,  and  the  time  and  place  when  and  where  the  same 
was  taken  ;  and  all  such  depositions,  when  thus  taken,  shall  be 
carefully  sealed  up,  and  transmitted  to  the  clerk  of  the  circuit 
court  of  the  county  from  which  such  dedimus  shall  have  been 
issued,  within  thirty  days  from  the  time  of  taking  the  same ; 
who  shall  thereupon  enter  the  same  at  large  upon  the  records 
in  his  office,  and  shall  certify  on  the  back  of  such  deposition 
that  the  same  has  been  duly  recorded,  and  return  it  to  the 
person  for  whose  benefit  it  shall  have  been  taken,  (g) 

Depositions  may  he  used  as  evidence. — "All  depositions 
taken  under  the  provisions  of  the  statute,  or  a  certified  copy  of 
the  record  thereof,  may  be  used  as  evidence  in  any  case  to 
which  the  same  may  relate,  in  the  same  manner  and  subject  to 

(/)  Rev.  Stat.  (1874)  495;  Rev.  Stat.  (1877)  482 
{g)   lb 


304  PERPETUATION  OF  TESTIMONY. 

Petitions  under  the  Statute  —  Proceedings  upon. 

the  same  conditions  and  objections  as  if  it  had  been  originally 
taken  in  the  suit  or  proceeding  in  which  it  is  sought  to  be 
UjBed ;  and  parties  notified  as  '  unknown  owners,'  in  the  manner 
hereinbefore  provided,  shall  be  bound  to  the  same  extent  as 
other  parties."  {h) 

(70    Eev.  Stat.  (1874)  49G;  Rev.  Stat.  (1877)  483. 


CHAPTER  XXIY. 


CROSS-BILLS. 

Section  1. 
2. 
8. 
4. 
5. 

Nature  op  a  CROSs-Bn.Ti. 
Frame  of  Bill. 
When  to  be  Filed. 
Process  Upon. 
Defenses  to. 

SECTION  I. 

NATURE   OF   A   CKOSS-BILL. 

A  cross-bill  implies  a  bill  brought  by  a  defendant  in  a  suit 
against  the  complainant  in  the  same  suit,  or  against  other 
defendants  in  the  same  suit,  or  against  both,  touching  the 
matters  in  question  in  the  original  bill,  (a)  It  is  of  a  mixed 
character,  partaking  partly  of  the  character  of  an  original  bill, 
and  partly  of  that  of  bills  not  original,  and  is  generally  con- 
sidered a  defense,  (b) 

Whenever  it  is  necessary  to  bring  all  the  equities  of  all  the 
parties  fully  before  the  court,  that  even  and  complete  equity 
may  be  done,  as  well  in  favor  of  the  defendant  as  of  the  com- 
plainant, it  becomes  necessary  to  file  a  cross-bill ;  and  this  may 
be  done  by  any  or  all  the  defendants,  against  all  or  any  of  the 
complainants,  or  by  a  defendant  against  his  co-defendants,  or  a 
part  of  them,  as  the  nature  of  the  case  may  require,  (c) 

Where  the  defendants  rely  on  their  answer  alone,  they  can 

(a)  Story's  Eq.  PI.  §  389 ;  Welf .  Eq.  PI.  239  ;  Coop.  Eq.  PI.  62  ;  Mitf.  Eq. 
PI.  80. 

(&)  Newhury  vs.  Wren,  1  Vern.  221 ;  Piggott  vs.  Williams,  6  Mad.  95 ;  Stf- 
ton  vs.  Barrow,  1  Ves.  Jr.  284 ;  Parker  vs.  Leigh,  6  Mad.  115 ;  Welf,  Eq. 
PI.  223. 

(c)    Ballance  vs.   Underhill,  3  Scam.  453 ;  1  Smith's  Ch.  Pr.  459 ;  Mitf. 
Eq.  PI.  75,  76 ;  Crutchfield  vs.  Patten,  44  Geo.  65 ;  Oilmer  vs.  Felhoun,  45 
Miss.  627  ;  Mercier  vs.  Lewis,  39  Cal.  532. 
20 


306  CROSS-BILLS. 


Nature  of. 


only  use  the  equity  of  their  case  for  the  purpose  of  defense ; 
but  if  they  wish  to  become  the  assailants,  and  seek  aflBrmative 
relief,  they  must  file  their  cross-bill ;  and  in  this  way,  and  this 
alone,  are  they  permitted  to  use  their  equity  as  a  weapon  of 
attack,  {d) 

A  cross-bill  must  be  germane  to  the  subject  matter  of  the 
original  bill,  and  no  foreign  matter  can  be  introduced,  (e) 
And  it  cannot  contradict  the  allegations  of  the  answer  filed  to 
the  original  bill,  (f) 

A  cross-bill  will  not  be  entertained  if  the  matter  of  it  can  be 
made  available  under  the  original  bill,  (g) 

The  necessity  of  a  cross-bill  for  relief  occurs,  when  the  de- 
fendant seeks  relief  in  reference  to  the  su!bject  matter  of  the 
original  bill ;  as  he  can  only  obtain  afiirmative  relief  in  that 
way.  (h)  And  if  the  matter  of  defense  arises  after  the  cause 
is  at  issue,  or  that  the  complainant  has  given  a  release,  or 
that  there  has  been  an  award  made  on  a  reference  after 
issue  joined,  which  at  law  may  be  pleaded  jpuis  darrein  con- 
tinuance ;  a  defendant  cannot  avail  himself  of  either,  by  plea 
or  answer,  and  therefore  must  resort  to  a  cross-bill,  (i) 

In  a  suit  to  enforce  a  claim  of  dower  in  lands  against  one 
holding  the  legal  title,  the  defendant  cannot  obtain  afiirma- 
tive relief  upon   an  equitable   lien  upon  the  premise,  except 

(d)  lb. ;  Tarleton  vs.  Vietes,  1  Gilm.  470  ;  Fletcher  vs.  Wilson,  1  S.  &  M. 
Ch.  376 ;  Galatian  vs.  Ertoin,  Hopk.  48. 

(e)  Hurd  vs.  Case,  32  111.  45  ;  Joaes  vs.  Smith,  14  111.  229  ;  Chicago  Arte- 
sian Well  Co.  vs.  Conn.  M.  Life  Ins.  Co.  57  111.  424. 

(/)  Hudson  vs.  Hudson,  3  Rand.  117. 

ig)  Brown  vs.  Bell,  4  Hey.  287 ;  N.  Y.  Dry  Dock  Co.  vs.  Am.  Life  Ins.  Co. 
8  Sandf.  Ch.  273  ;  Story's  Eq.  PI.  §  389  ;  Morgan  vs.  Smith,  11  111.  195. 

{h)  Tarleton  vs.  Vistes,  1  Gilm.  470 ;  Ballance  vs.  Underhill,  3  Scam.  453  ; 
Atkin  vs.  Merrell,  39  111.  63 ;  Stone  vs.  Smoot,  39  111.  409  ;  McCagg  vs.  HeOr 
cock,  42  111.  153  ;  Hanna  vs.  Ratekin,  43  111.  462 ;  Croskey  vs.  Northern  Manuf. 
Co.  48  111.  481 ;  Tittsworth  vs.  Stout,  49  111.  78;  Howett  vs.  Selby,  54  111.  151 ; 
Ca/rnochan  vs.  Christie,  11  Wheat.  446  ;  Cullum  vs.  Ericin,  4  Ala.  452 ;  Cloud 
vs.  Hamilton,  3  Yerg.  81  ;  Schwarz  vs.  Sears,  Walk.  Ch.  170. 

(i)  Ferris  vs.  McClurc,  36  111.  77 ;  Inglehart  vs.  Crane,  42  111.  262  ;  Taylor 
VB.  Titus,  2  Edw.  Ch.  135  ;  Barrington  vs.  O'Brien,  2  Ball  &  Beat.  140 ;  see 
Kelsey  vs.  Hobby,  16  Pet.  269  ;  National  Bank  vs.  Sprague,  21  N.  J.  Eq.  530. 


CROSS-BILLS.  307 


Nature  of  —  Frame  of  Bill. 


by  means  of  a  cross-bill,  {j)  It  is  a  proper  proceeding  to  obtain 
an  equitable  set-ofi".  (k) 

A  cross-bill  is  generally  considered  a  defense ;  {l)  and  the 
original  cause  and  the  cross-bill  are  but  one  cause,  (m)  It  is 
so  effectually  a  defense,  that,  if  a  cross-bill  is  taken  as  con- 
fessed, it  may  be  used  as  evidence  against  the  complainant 
in  the  original  suit,  on  the  hearing ;  and  will  have  the  same 
effect  as  if  he  had  admitted  the  facts  in  an  answer,  (ji) 

New  parties  may  be  brought  in  by  cross  bill,  who  were  not 
parties  to  the  original  bill,  (o)  But  persons  not  made  parties 
defendants  in  the  original  bill  have  no  right  to  file  a  cross-bill ; 
but  where  one  is  filed  without  objection  by  the  complainant, 
who  answers  it,  such  bill  will  not  be  dismissed  before  the  final 
hearing,  (jp) 

SECTION  II. 

FRAME    OF    BILL. 

Generally,  a  cross-bill  should  state  the  parties,  prayer,  and 
objects  of  the  original  bill,  the  proceedings  thereon,  and  the 
rights  of  the  party  exhibiting  the  bill,  which  are  necessary  to 
be  made  the  subject  of  cross-litigation  ;  or  the  ground  on  which 
he  resists  the  claims  of  the  complainant  in  the  original  bill,  if 
that  is  the  object  of  the  new  bill.  A  cross-bill  should  not 
introduce  new  and  distinct  matters,  not  embraced  in  the  orig- 
inal suit ;  for  as  to  such  matters  it  is  an  original  bill,  and  they 
cannot  properly  be  examined  at  the  hearing  of  the  first  suit,  (q) 

ij)    Aiken  vs.  Mei-rel,  39  111.  63. 

(k)    CartwHght  vs.  Clark,  4  Met.  104. 

(l)  Neicbury  vs.  Wren,  1  Vern.  221 ;  Field  vs.  Schieffelin,  7  Johns.  Ch.  R. 
252  ;  Oalatian  vs.  Erwin,  Hopk.  Ch.  48. 

(m)  Field  vs.  Schieffelin,  1  Johns.  Ch.  R.  252. 

in)  Wliite  vs.  Buloid,  2  Paige,  Ch.  164 ;  2  Barb.  Ch.  Pr.  127  ;  Story's  Eq. 
PI.  §  899. 

(o)   Surd  vs.  Case,  32  111.  45;  Jones  vs.  Smith,  14  111.  229. 

(p)  Payne  vs.  Cowan,  1  S.  &  M.  Ch.  26. 

(q)  Story's  Eq.  PI.  §401 ;  Mitf.  Eq.  PI.  81 ;  Coop.  Eq.  PI.  88  ;  Welf.  Eq.  PI. 
228 ;  May  vs.  Armstrong,  3  J.  J.  Marsh.  262  ;  Oalatian  vs.  Erwin,  Hopk.  48 ; 
Hudson  vs.  Hudson,  3  Rand.  117 ;  Hurd  vs.  Case,  32  111.  45,  49 ;  Jones  vs. 
Smith.  14  111.  229 ;  Fletcher  vs.  Wilsoii,  1  S.  &  M.  Ch.  376  ;  Cross  vs.  De  Valle, 
1  Wall.  U.  S.  1. 


308  CROSS-BILLS. 


Frame  of  —  Form  of,  etc. 


And  it  is  said  that  a  cross-bill  need  not,  as  against  the  com 
plainant  in  the  original  bill,  show  any  equity  to  support  the 
jurisdiction,  [r) 

When  the  bill  is  brought  by  one  defendant  upon  a  question 
between  two  defendants,  the  complainant  to  the  original  bill 
must  be  a  party,  {s) 

A  cross-bill  to  have  usurious  securities  delivered  up  must 
offer  to  pay  what  is  due.  {t) 

The  Chancery  Practice  Act  of  Illinois  pro^;ides,  that  "  it  shall 
not  be  necessary  to  recite  in  a  cress-bill  any  of  the  pleadings 
or  proceedings  in  the  case  in  which  it  is  filed  ;  and  it  shall  not 
be  necessary  to  pray  process  except  against  new  parties."  {u) 

No. 119.     Cross-hill  to  a  foreclosure  suit. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  C.  D.,  of,  etc.,  one  of  the  defendants 
hereinafter  named,  exhibited  in  this  honorable  court  his  bill  of 
complaint,  against  one  E.  F.,  of,  etc.,  a  defendant  hereinafter 
named,  and  your  orator,  to  foreclose  a  mortgage  therein  de- 
scribed, and  thereby  praying  that  an  account  may  be  taken  in 
that  behalf,  and  that  the  defendant,  E.  F.,  be  decreed  to  pay  the 
said  C.  D.  whatever  sum  should  appear  to  be  due  to  him,  to- 
gether with  the  costs  of  that  proceeding,  by  a  short  day  to  be 
fixed  by  the  court ;  and  that  in  default  of  such  payment,  the 
said  mortgage  property  may  be  sold  as  directed  by  the  court,  to 
satisfy  such  debt  and  costs ;  and  that  in  case  of  such  sale  and  a 
failure  to  redeem  therefrom  pursuant  to  law,  the  said  E.  F. 
and  your  orator,  the  defendants  to  said  bill,  and  all  persons 
claiming  through  -or  under  them,  after  the  commencement  of 
said  proceeding,  may  be  forever  barred  and  foreclosed  of  all 
right  or  equity  of  redemption  of  the  said  mortgaged  property ; 
and  that  the  said  C.  D.  may  have  such  other  and  further  relief 

(r)  Ddble  vs.  Potman,  Hardr.  160 ;  Burgess  vs.  Wlieate,  1  Blacks.  133 ; 
Mason  vs.  Gardiner,  4  Bro.  C.  C.  437  ;  Calverley  vs.  Williams,  1  Ves.  Jr.  211, 
213. 

(s)     Coop.  Eq.  PI.  85  ;  Welf.  Eq.  PI.  229  ;  Mitf.  Eq.  PI.  81. 

{t)    Mason  vs.  Gardiner,  4  Bro.  C.  C.  437. 

(»)    Kev.  Stat.  (Ib74j  303;  Rev.  Stat.  (1877)  187. 


CROSS-BILLS.  309 


Form  of. 


as  equity  may  require  and  to  your  honor  shall  seem  meet;  and 
your  orator  being  duly  served  with  process,  appeared  and  put 
in  his  answer  thereto,  as  by  the  said  bill,  and  other  pleadings 
and  proceedings  in  the  said  cause,  now  remaining  on  file  and, 
of  record  in  this  honorable  court,  reference  thereto  being  had, 
will  more  fully  appear. 

Your  orator  further  represents  unto  your  honor  that,  on,  etc., 
and  prior  to  the  date  of  the  execution  of  the  said  mortgage 
from  the  said  E.  F.  to  the  said  C.  D.,  the  said  E.  F.  being  in- 
debted to  your  orator  in  the  sum   of dollars,  made  and 

delivered  to  your  orator  his  certain  promissory  note  of  that 
date,  and  thereby  promised  to  pay  your  orator  the  said  sum  ot 

dollars,  on,  etc.,  {describe  the  note)  as  will  appear  by  the 

said  note,  ready  to  be  produced  in  court,  and  by  a  copV  of  the 
same  hereto  attached,  and  marked  "Exhibit  A,"  which  is  hereby 
made  a  part  of  this,  your  orator's  cross-bill. 

Your  orator  further  represents,  that  to  secure  the  payment  ot 
the  principal  sum  and  interest  mentioned  in  said  pi-omissory 
note,  the  said  E.  F.,  on,  etc.,  by  his  mortgage  deed  of  that  date, 
conveyed  to  your  orator,  in  fee  simple,  that  certain  parcel  ot 

land,  with  the  appurtenances,  in  the  said  county  of ,  to 

wit :  {Here  describe  the  mortgaged  'premises)  subject,  however, 
to  a  condition  of  defeasance  upon  the  payment  of  the  principal 
sum  and  interest  aforesaid,  according  to  the  tenor  and  eft'ect  ot 
the  said  promissory  note,  which  said  mortgage  deed  was  on, 
etc.,  duly  acknowledged ;  and  afterwards,  (and  before  the  exe- 
cution and  delivery  of  the  mortgage  deed  to  the  said  C.  D.)  on, 
etc.,  the  said  mortgage  deed  to  your  orator  was  duly  filed  for 

record  in  the  recorder's  oflice  of  the  county  of aforesaid ;  as 

by  the  said  mortgage  deed  and  its  accompanying  certificates  ot 
acknowledgment  and  recording,  ready  to  be  produced  in  court, 
will  more  fully  appear.  A  copy  of  the  said  mortgage  deed 
and  certificates,  marked  "  Exhibit  B,"  is  hereto  attached,  and  is 
hereby  made  a  part  of  this  bill. 

Your  orator  further  represents  that  the  lien  of  your  orator's 
said  mortgage  deed  is  superior  and  prior  to  that  of  the  said 
C.  D. ;  and  that  the  said  E.  F.  has  not  yet  paid  the  said  princi- 
pal sum  and  interest,  so  due  your  orator,  or  any  part  thereof, 
although  the  same  long  since  became  due  ;  by  means  whereof 
the  said  mortgaged  premises  have  become  forfeited,  subject, 
nevertheless,  to  redemption  in  equity  by  the  said  JE.  F.  and 
C.  D.,  or  their  assigns. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  by  filing  this  his  cross-bill,  in  the  said 
proceedings  commenced  by  the  said  C.  D.  against  your  orator 


310  CROSS-BILLS. 


Forms  of. 


and  the  said  E.  F. ;  and  to  the  end  that  the  said  C.  D.  and 
E.  F.j  who  are  hereby  made  parties  defendant  to  this  cross- 
bill, may  be  required  to  make  full  and  direct  answer  to  the 
same,  hut  not  under  oath,  the  answer  under  oath  heing  hereby 
waived,  that  an  account  may  be  taken  by  or  under  the  direc- 
tion of  the  court,  of  the  amount  due  your  orator  upon  said 
promissory  note  and  mortgage  deed  ;  that  the  defendant,  E.  F., 
may  be  decreed  to  pay  to  your  orator  whatever  sum  shall 
appear  to  be  due  to  him  upon  the  taking  of  such  account, 
together  with  the  costs  of  this  proceeding,  %  a  short  day  to 
be  fixed  by  the  court ;  that  in  default  of  such  payment  the 
said  ip.ortgaged  premises  may  be  sold  as  this  honorable  court 
shall  direct,  to  satisfy  such  debt  and  costs;  that  in  case  of  such 
sale,  and  of  a  failure  to  redeem  therefrom  pursuant  to  law, 
that  the  defendants,  and  all  persons  claiming  through  or  under 
them,  after  the  commencement  of  this  proceeding,  may  be 
forever  barred  and  foreclosed  of  all  right  or  equity  of  redemp- 
tion of  the  said  mortgaged  premises ;  and  that  your  orator 
may  have  such  further  and  other  relief  in  the  premises  as  the 
nature  of  his  case  shall  require  and  to  your  honor  shall  seem 
meet.  {If  any  new  parties  are  introduced,  add  prayer  for 
process  as  ante,  No.  85,  page  W9,  and  attach  exhibits^ 

No.  IW.     Cross-hill  in  the  nature  of  a  plea  puis  darrein 
continuance. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  C.  D.,  of,  etc.,  the  defendant  hereinafter 
named,  filed  his  bill  of  comj)laint  in  this  honorable  court 
against  your  orator,  thereby  praying,  etc.,  {Here  state  the 
prayer  of  the  hilli)  and  your  orator,  being  duly  served  with 
process,  appeared  and  put  in  his  answer  thereto,  to  which 
answer  the  said  C.  D.  filed  a  replication ;  and  issue  being  thus 
ioined,  testimony  was  taken  on  both  sides,  and  the  proofs 
closed ;  whereupon  the  said  cause  was  set  down  for  hearing,  as 
by  the  said  bill,  and  other  pleadings  and  proceedings  in  the 
said  cause,  now  remaining  as  of  record  in  this  honorable  court, 
reference  being  thereto  had,  will  more  fully  appear. 

Your  orator  further  represents,  that  the  said  cause  has  not 
yet  been  heard ;  and  on,  etc.,  the  said  C.  D.,  by  a  certain  writ- 
ing of  release,  of  that  date,  did  remise,  release  and  forever  quit- 
claim unto  your  orator,  his  heirs,  executors  and  administrators, 


CROSS-BILLS.  311 


Forms  of. 


the  several  matters  and  things  complained  of  in  and  by  the  said 
bill  of  the  said  C.  D.,  and  in  question  in  the  said  suit,  and  each 
and  every  of  them,  and  of  all  sums  of  money  then  due  and 
owing,  or  thereafter  to  become  due  and  ovring,  together  with 
all,  and  all  manner  of  actions,  causes  of  actions,  snits,  and 
demands  whatsoever,  both  at  law  and  in  equit}',  or  otherwise 
howsoever,  which  he  the  said  C.  D.  then  had,  or  which  he  should 
or  might  at  any  time  or  times  thereafter  have,  claim,  allege, 
or  demand,  against  your  orator,  for,  or  by  reason  or  means  of 
any  matter,  cause  or  thing  whatsoever,  from  the  beginning  of 
the  world  to  the  day  of  the  date  of  the  said  deed  or  writing  of 
I'elease ;  as  by  the  said  release,  reference  thereunto  being  had, 
and  a  copy  of  the  same  hereto  attached,  marked  "Exhibit  A," 
and  made  a  part  of  this  bill,  will  more  fully  appear. 

And  your  orator  hoped  that  in  consequence  of  the  said 
release,  the  said  C.  D.  would  not  have  proceeded  in  the  said 
suit  against  your  orator ;  but  the  said  C.  D.,  notwithstanding 
the  said  release,  threatens  and  intends  to  proceed  in  the  said 
suit,  and  to  bring  the  same  on  for  hearing  in  due  course;  and 
he  pretends  that  no  such  release  was  ever  executed  by  him,  or 
if  so,  that  the  same  was  obtained  by  fraud  and  surprise,  and 
therefore  void.  Whereas  your  orator  charges  that  the  same 
was,  in  every  respect,  fairly  and  properly  obtained  by  your 
orator,  and  duly  executed  by  the  said  C.  D. 

And  your  orator  further  represents,  that  under  the  circum- 
stances aforesaid,  he  is  unable  to  put  the  said  release  in  issue, 
or  to  use  the  same  as  a  plea  in  bar  of  the  said  suit. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  who  is  made  a  j)arty  defendant  to  this  cross-bill, 
may  be  required  to  make  full  and  direct  answer  to  the  same, 
Imt  not  under  oath,  the  answer  under  oath  heing  hereby  waived^ 
and  that  the  said  release  may  be  established  and  declared  by 
this  honorable  court  a  sufficient  bar  to  any  further  proceedings 
by  the  said  C.  D.  in  the  said  suit ;  and  that  the  bill  of  the  said 
C.  D.  therein,  may,  under  the  circumstances,  be  forthwith  dis- 
missed with  costs ;  and  that  your  orator  may  have  such  other 
and  further  relief  in  the  premises  as  equity  may  require  and  to 
your  honor  shall  seem  meet. 

{If  new  parties  are  added,  pray  process  as  in  JVo.  85,  ante, 
page  209,  and  attach  ^'■Exhibit  A^) 


312  CROSS-BILLS. 


When  to  be  Filed. 


SECTION  III. 

WHEN    TO    BE    FILED. 

The  proper  time  for  filing  a  cross-bill,  when  such  a  bill  is 
necessary,  is  at  the  time  of  putting  in  the  answer  to  the 
original  bill,  and  before  issue  is  joined  by  the  filing  of  a  repli- 
cation, (v)  As  the  matters  of  defense  upon  which  a  cross-bill 
is  founded  must  be  stated  in  the  answer  to  the  original  bill,  as 
well  as  in  the  cross-bill,  it  can  seldom  be  necessary  to  delay 
the  filing  of  the  cross-bill  till  after  the  original  cause  is  at 
issue,  (w) 

But  the  rule  that  a  cross-bill  should  be  filed  at  the  same 
time  with  the  answer,  does  not  apply  to  such  a  bill  by  one 
defendant  against  a  co-defendant,  for  the  reason  that,  until  the 
answers  are  filed,  neither  defendant  can  know  what  defense 
the  other  will  set  up.  («) 

A  defendant  desiring  to  file  a  cross-bill  should  do  so  without 
delay,  and  have  the  same  at  issue,  if  practicable,  so  as  to  be 
heard  with  the  original  bill.-  If  he  desires  further  time,  he 
must  seek  it  as  a  matter  of  indulgence,  {y)  The  proceedings 
in  the  original  suit  will  not  be  delayed,  unless  on  the  special 
order  of  court,  founded  upon  notice  of  the  application  to  the 
adverse  party,  (z) 

The  defendant  cannot  claim,  as  a  matter  of  right,  a  continu- 
ance, where  the  original  cause  is  ripe  for  hearing,  by  filing  a 
cross-bill,  and  having  the  same  answered,  without  showing 
sufficient  cause  for  delay,  (a)  To  entitle  him  to  a  delay  of  the 
original  proceedings,  the  cross-bill  must  be  sworn  to  positively, 

(c)    Irving  vs.  BeKay,  10  Paige,  CIt.  R.  319  ;  Wiley  vs.  Platter,  17  111.  540. 

(«))  2  Barb.  Cli.  Pr.  129. 

(a;)  Vanderveer  vs.  Holcomh,  21  N.  J.  Eq.  105 ;  see  Berryman  vs.  Ch'aham, 
lb.  370. 

{y)  BeaucJiamp  vs.  Putman,  34  111.  378 ;  Reed  vs.  Kempf,  16  111.  445 ; 
Youngs  vs.  Overseers  etc.  2  Greeu,  N.  J.  521. 

■z)  Cartwright  vs.  Chirk,  4  Met.  104;  Field  vs.  ScMeffelin,  7  Jolms.  Ch. 
250;  WJiite  vs.  Buloid,  2  Pnijre,  Ch.  164  ;  Coleman  ys.  Moore,  3Litt.  355; 
Beaucharnj)  vs.  Putman,  34  111.  378 

(a)   Wiley  vs.  Platter,  17  111.  ody :  see  Reed  vs.  Kenqif,  16  111.  448. 


CROSS-BILLS.  313 


Leave  to  File  —  Process  upon. 


either  by  the  comphiinant  thereto  or  by  the  person  from  whom 
his  information  of  the  facts  was  derived,  (h) 

The  court  itself  will  sometimes,  in  its  discretion,  where  it 
appears  that  the  suit  is  insufficient  to  bring  before  the  court 
the  rights  of  all  the  parties,  and  the  matters  necessary  to  a  just 
determination  of  the  cause,  at  the  hearing,  direct  a  cross-bill  to 
be  liled.  (c) 

Leave  to  file. — A  defendant  cannot  file  a  cross-bill  before  the 
original  bill  is  answered,  {d)  And  then  only  upon  leave  ob- 
tained from  the  court  for  that  purpose,  ie) 

In  Illinois  it  is  held  that  the  filing  of  a  cross-bill  is  a  matter 
of  right  and  requires  no  leave,  but  it  does  not  necessarily  stay 
the  original  cause.  (/*) 

SECTION  IV. 
PEOCESS    UPON. 

By  the  statute  of  Illinois,  it  is  provided  that  "  where  it  is 
necessary  for  the  defendant  to  bring  a  new  party  before  the 
court,  he  shall  state  it  in  his  cross-bill ;  and  a  summons  shall 
be  issued,  and  other  proceedings  had,  as  in  the  case  of  other 
defendants.''  {(J)  This  was  the  rule  independent  of  sueh  statute 
and  before  its  passage,  ill)  As  against  the  parties  to  the  orig- 
inal bill,  no  process  is  necessary.  (^') 

In  Kentucky  it  is  held  that  process  must  issue  on  the  filing  of 
the  cross-bill,  or  the  defendants  are  not  bound  to  notice  it.  {j) 

(6)  Talmage  vs.  Pell,  9  Paige,  Ch.  410 ;  Irving  vs.  DeKay,  10  Paige, 
Ch.  319. 

(c)  Field  vs.  Schieffelin,  7  Johns.  Ch.  250 ;  Latouche  vs.  Dunsaney,  1  Sch. 
&  Lef.  137  ;  Story's  Eq.  PI.  §  396  ;  Mitf.  Eq.  PI.  82,  83. 

{d)    Allen  vs.  Allen,  Hemp.  58. 

{e)    Branson  vs.  LaCrosse  &  Milwaukee  R.  R.  Co.  2  Wall.  U.  S.  283. 

(/)  Beauchamp  vs.  Putmnn,  34  111.  378  ;  Jones  vs.  Smith,  14  111.  2:?9 ;  W. 
U.  Teleg.  Co.  vs.  P.&  A.  Teleg.  Co.  49  111.  90. 

(g)   Rev.  Stat.  (1874)  202;  Rev.  Stat.  (1877)  187. 

(h)   Jones  vs.  Smith,  24  111.  229;  Hurd  vs.  Case,  32  III.  45. 

(0  Rev.  Stat.  (1874)  202;  Rev.  Stat.  (1877)  187;  Fleecers.  Russell,  18 
111.  31. 

(J)  Mil'js  vs.  Bacon,  4  J.  . I.  Marsh,  457;  Ward  vs.  Davidson,  2  Wk  US; 
Garnvr  vs.  Beaty,  7  lb.  223;  Talbot  vs.  McGhee,  4  Monr.  375;  Anderson  vs. 
Ward,  C  Monr.  419. 


314  CROSS-BILLS. 


Defenses  to  —  Demurrer. 


SECTION  V. 
DEFENSES   TO. 

Demurrer. — A  demurrer  for  want  of  equity  will  not  lie  to 
a  cross-bill  filed  by  a  defendant  in  a  suit  against  the  complain- 
ant in  the  same  suit,  touching  the  same  matter.  For  being 
drawn  into  court  by  the  complainant  in  the  original  bill,  he 
may  avail  himself  of  the  assistance  of  the  court  without  being 
put  to  show  a  ground  of  equity  to  support  its  jurisdiction.  (^) 
Where  a  cross-bill  seeks  relief  which  is  of  an  equitable  nature, 
it  should  contain  all  proper  allegations  which  confer  an  equit- 
able title  to  such  relief  upon  the  party ;  otherwise  it  will  be 
open  to  demurrer.  Thus  where  an  original  bill  was  filed  to 
enforce  a  security,  and  the  defendant  filed  a  cross-bill  to  have 
the  security  delivered  up  as  a  usurious  security,  and  the 
cross-bill  did  not  offer  to  pay  the  sum  really  due,  a  demurrer 
was  allowed.  (Z) 

If  a  cross-bill  is  not  confined  to  the  matters  in  litigation  in 
the  original  suit,  but  seeks  to  bring  before  the  court  other  dis- 
tinct matters  and  rights,  it  is  no  longer  entitled  to  be  deemed 
a  cross-bill,  but  is  an  original  suit,  and,  it  seems,  a  demurrer 
would  lie.  {m)  So,  if  a  cross-bill  is  filed  contrary  to  the  prac- 
tice of  the  court,  and  under  circumstances  in  which  a  pure  bill 
of  this  nature  is  not  allowed,  or  if  it  seeks  to  bring  into  ques- 
tion facts  which  the  party  has  admitted  in  his  answer  to  the 
original  bill,  it  is  open  to  a  demurrer,  in) 

(k)  Boble  vs.  Potman,  Hardr.  160 ;  Coop.  Eq.  PI.  81,  215 ;  Mitf.  Eq.  PI 
203 ;  2  Barb.  Ch.  Pr.  133. 

(I)  Mason  vs.  Oardiner,  4  Bro.  C.  C.  436 ;  Busfield  vs.  Solomons,  9  Ves 
84 ;  Hickson  vs.  Aylward,  3  Molloy,  1 ;  Welf.  Eq.  PI.  230 :  Oalatian  vs.  JSrioin, 
Hopk.  48,  59;  S.  C.,8  Cowen,  561;  Tobei/  vs.  Foreman,  79  lU.  489. 

(to)  Welf.  Eq.  PI.  230 ;  2  Barb.  Ch.  Pr.  133. 

(n)  Story's  Eq.  PI.  ^628-633;  Coop.  Eq.  PI.  87;  2  Barb.  Ch.  Pr.  133; 
Welf.  Eq.  PJ.  230  ;  Berkley  vs.  B7jder,  2  Ves.  533,  537  ;  1  Mont.  Eq.  PI.  328  » 
White  vs.  Buloid,  2  Paige,  Ch.  R.  164;  Field  vs.  Schieffelin,  7  Johns.  Ch. 
250  ;  Holhrook  vs.  Prettyman,  44  111.  311. 


CROSS-BILLS.  315 


Defenses  to  —  Pleas  —  Answer. 


Pleas. — A  plea  to  the  person  of  the  complainant  does  not  lie 
to  a  cross-bill,  unless  it  is  exhibited  by  a  person  incapable  alone 
to  institute  a  suit ;  nor  does  a  plea  to  the  jurisdiction  to  such  a 
bill ;  for  the  defendant,  by  filing  his  original  bill,  has  affirmed  the 
sufficiency  both  of  the  person  and  the  jurisdiction,  (c)  Neither 
can  a  cross-bill,  though  between  the  same  parties,  as  an  original 
suit,  be  met  by  a  plea  of  a  suit  for  the  same  object  pending  in 
a  court  of  concurrent  jurisdiction  ;  thus,  after  a  bill  brought  in 
the  exchequer  to  foreclose  a  mortgage,  it  was  held  that  a  de- 
fendant may  bring  a  bill  in  the  court  of  chancery  to  redeem, 
and  the  pendency  of  the  former  suit  is  not  pleadable,  {p) 

In  all  other  respects  cross-bills  are  liable  to  all  the  pleas  in 
bar,  to  which  original  bills  are  liable ;  and  the  converse  is 
equally  true,  that  a  cross-bill  is  not  liable  to  any  plea  which 
will  not  hold  to  an  original  bill.  And,  as  it  seems,  that  a  de- 
fendant cannot,  by  a  cross-bill,  compel  the  complainant  in  the 
original  to  make  discovery  of  the  defendant's  title,  the  objec 
tion  may  be  taken  by  plea ;  and  it  may  also  be  insisted  on  by 
answer,  {q) 

Answer. — The  rules  relating  to  answers  to  original  bills, 
apply  fully  to  answers  to  cross-bills.  It  is  to  be  observed, 
however,  that  the  complainant  in  the  original  bill  has  tlie  right 
to  the  first  answer ;  and  may  move  to  stay  proceedings  in  the 
cross-suit  until  the  original  bill  is  answered,  [r)  And  the  com- 
plainant in  the  original  suit  does  not  waive  his  right  to  an 
answer  by  obtaining  an  order  for  time  to  answer  the  cross- 
bill, {s) 

{o)  Welf.  Eq.  PI.  229  ;  Mitf.  Eq.  PI.  290,  291 ;  Coop.  Eq.  PI.  304  ;  Beames, 
PI.  in  Eq.  302,  S-i ;  2  Barb.  Cli.  Pr.  132. 

ip)  Lord Newbnrgh  V?.  Wrcn,l  Vprn.220;  2  Dan.  Ch.  Pr.  148;  Welf.  Eq. 
PI.  229. 

(q)  Bdbcoodvs.  WiihercUA  Young-p  &Co]].  311  ;  Glpfjg  Yfi.  Legh,\WL\g:'h., 
N,  S.  :in2  ;  Cherry  vs.  L'gh,  lb.  306  ;  Welf.  Eq.  PI.  230  ;  2  Barb.  Ch.  132, 133. 

'r\  Harris  vs.  Harris.  'I'ur.  &  Kuss.  165  ;  Wiglei/  vs.  WMtaker,  1  Beavan, 
349. 

(«)    2  Barb.  Ch.  Pr.  134 ;  see  Ramkissenseat  vs.  Barker,  1  Atk.  20. 


316  CROSS-BILLS. 


Proceedings  upon. 


SECTION    VI. 
PKOCEEDINGS    UPON. 

The  complainant  in  the  original  siiit  is  not  compelled  in  any 
case  to  stay  proceedings  therein  upon  the  filing  of  a  cross-bill, 
except  by  a  special  order  of  the  court.  And  it  is  not  a  matter 
of  course  for  the  court  to  stay  the  proceedings  in  the  original 
suit,  in  any  case,  except  where  the  defendant  in  the  cross  suit 
is  in  contempt  for  not  answering,  (t)  If  the  complainant  in  the 
cross-bill  desires  to  have  the  proceedings  in  the  original  suit 
stayed,  the  cross-bill  should  be  sworn  to,  (u)  by  some  person 
who  knows  the  facts,  {v) 

A  final  decree  upon  the  filing  of  a  cross-bill,  granting  the 
relief  thereby  sought,  cannot  be  rendered  in  the  absence  of  an 
answer,  unless  steps  have  been  taken  to  place  the  defendants  in 
default,  (w) 

After  both  causes  are  at  issue  or  in  a  situation  to  be  heard, 
the  complainant  in  the  cross  suit  may  have  an  order  that  they 
be  heard  together.  But  the  delay  of  the  complainant  in  the 
cross  suit  will  not  be  permitted  to  delay  the  hearing  of  the 
original  cause,  (e?) 

An  order  should  be  obtained,  when  both  causes  are  ready, 
that  they  be  brought  on  for  hearing  together,  (y) 

(t)    White  vs.  Buloid,  2  Paige,  Ch.  164. 

(u)    lb. ;  2  Barb.  Ch.  Pr.  134. 

(v)    Talmage  vs.  Pell,  9  Paige,  Ch.  410. 

(w)  West.  Un.  Teleg.  Go.  vs.  P.  &  A.  Teleg.  Co.  49  111.  90. 

(x)   White  vs.  Buloid,  2  Paige,  Ch.  164. 

{y)    2  Barb.  Ch.  Pr.  135 ;  Hindes,  Pr.  54. 


CHAPTER  XXy. 

BILLS  FOE  SPECIFIC  PERFOEMANCE. 

Section  1.  Nature  of,  and  When  Proper. 

2.  Parties  to. 

3.  Frame  of  Bill. 

4.  Decree. 

SECTION  I. 
NATUEE  OF,   AND  WHEN  PEOPEE. 

The  essential  conditions  of  a  contract  which,  will  be  specific- 
ally enforced  in  a  court  of  equity  are,  tliat  the  contract  must 
be  made  between  competent  parties ;  it  must  be  entered  into 
willingly ;  the  terms  must  be  understood  by  the  parties,  and 
be  certain  and  defined ;  the  consideration  must  be  valua- 
ble ;  there  must  be  mutuality  of  consideration  and  remedy ;  it 
must  be  properly  proved ;  the  party  seeking  its  performance, 
must  fulfill  his  obligations  under  it ;  it  must  be  such  as  the  court 
can  enforce  ;  it  must  be  one  proper  to  be  executed  ;  it  must  be 
one  on  which  there  is  not  an  adequate  remedy  at  law ;  it  must 
not  be  an  unreasonable  contract,  on  which  there  might  be  a 
remedy  at  law ;  and  the  conduct  of  the  party  seeking  the  per- 
formance must  have  been  correct,  {a) 

A  court  of  equity  will  often  refuse  to  enforce  a  contract  which 
it  would  also  refuse  to  annul,  and  will  leave  the  parties  to  their 
remedy  at  law.  (b) 

A  specific  performance  rests  in  the  sound  discretion  of  the 
court,  under  all  the  circumstances  of  the  particular  case ;  (<?) 

(rt)  Batten  on  Spec.  Perf.  of  Cont.;  see  Taylor  y?,.  Merrill,  55  111.  52; 
Fitch  vs.  Boyd,  Id.  307;  Fleming  vs.  Ccp-ter,  87  111.  565. 

(6)  Jackson  vs.  Ashton,  11  Pet.  239;  'Seymour  vs.  Delattcey,  6  Johns.  Ch. 
R.  222;  Clitherall  vs.  Ogllvie,  1  Dessau.  250;  BarJcsdale  vs.  Payne,  Riley,  Cb. 
174;  Gasque  vs.  Small,  2  Strobh.  Eq.  72;  Henderson  vs.  Hays,  2  Watts,  148. 

(c)  McComas  vs.  Easley,  21  Gratt.  Va.  23;  Wynn  vs.  Smith,  40  Geo.  457; 
Race  vs.  Weston,  86  111.  91;  McCormick  ys.  Sage,  87  111.  484;  Kerfoot  vs. 
Breckenridge,  87  111.  105. 


318  BILLS  FOE  SPECIFIC  PERFORMANCE. 

Nature  of,  and  When  Proper. 

and  it  is  not  decreed  where  there  has  been  long  delay,  or  laches^ 
or  a  material  change  of  circumstances,  (c?)  The  discretion 
of  the  court  is  not,  however,  an  arbitrary  one,  but  is  regulated 
by  rules  and  principles,  {e) 

The  contract  must  be  free  from  fraud  or  surprise,  and  fair 
and  just  in  all  its  parts,  or  the  complainant  will  be  left  to  his 
remedy  at  law.  (/")  And  a  performance  will  not  be  decre'ed  on 
an  imperfect,  inchoate,  or  hard  bargain,  {g)  There  must  also 
be  mutuality  and  reciprocity  of  obligation.  (A) 

A  court  of  equity  will  not  decree  the  specific  performance 
of  a  contract,  the  consideration  of  which  is  a  wager  upon  an 
election.  {%) 

Upon  principles  of  natural  justice,  a  person  ought  not  to  be 
compelled  to  part  with  his  title  to  land  until  he  has  received 
the  amount  which  he  had  contracted  to  take  for  it,  nor  should 

(d)  Pigg  vs.  Corder,  12  Leigli,  69 ;  Rector  vs.  Rector,  3  Gilm.  105 ; 
MUnor  vs.  Willard,  34  111.  38 ;  Hough  vs.  CougMan,  41  111.  130 ;  lliompson 
vs.  Bruen,  46  111.  125 ;  Fitch  vs.  Boyd,  55  111.  307 ;  Iglehart  vs.  Gibson,  56  111. 
81 ;  Holt  vs.  Rogers,  8  Pet.  420  ;  Houghton  vs.  Murphy,  21  N.  J.  Eq.  118- 
Harhness  vs.  Underhill,  1  Black,  316;  Johns  vs.  Norris,  22  N.  J.  Eq.  102- 
Norris  vs.  Knox,  1  Pittsb.  Pa.  R.  56. 

(e)  Griffith  vs.  Frederick  Co.  Bank,  6  Gill  &  J.  424 ;  Quinn  vs.  Roath,  37 
Conn.  16 ;  Meeker  vs.  Meeker,  16  Conn.  403 ;  Seymour  vs.  Delancey,  3  Cow. 
445 ;  yS.  C.  6  Johns.  Ch.  R.  222 ;  King  vs.  Morford,  Saxton,  274  ;  Anthonys  a 
Leftwick,  3  Rand.  238 ;  Prater  vs.  Miller,  3  Hawks,  629  ;  Turner  vs.  Clay,  3, 
Bibb,  52 ;  Frisbie  vs.  Ballance,  4  Scam.  287  ;  Broadwell  vs.  Broadwell,  1 
Gilm.  599 ;  Dougherty  vs.  Hampston,  2  Blackf.  273 ;  Leigh  vs.  Crump,  1 
Ired.  Ch.  299  ;  Gould  vs.  Womack,  2  Ala.  83 ;  Hester  vs.  Hooker,  7  S.  &  M. 
768 ;  Tobey  vs.  County  of  Bristol,  3  Story,  800  ;  Clement  vs.  Reid,  9  S.  &  M. 
535  ;  Tyson  vs.  Watts,  1  Md.  Ch.  Decis.  13. 

(/)  Seymour  vs.  Delancey,  3  Cow.  445 ;  Griffith  vs.  Frederick  Co.  Bank, 
6  Gill  &  J.  424 ;  Borten  vs.  Scheffer,  21  Gratt.  Va.  474  ;  Modesett  vs.  Johnson, 
2  Blackf.  431 ;  Johnson  vs.  Dodge,  17  111.  433  ;  Lear  vs.  Choteau,  23  111.  39 ; 
Boomer  vs.  Cunningham,  22  111.  320  ;  Taylor  vs.  Merrill,  55  111.  52  ;  Lee  vs. 
Kirby,  104  Mass.  420. 

{g)    Ohio  vs.  Baum,  6  Ham.  383  ;  McClellan  vs.  Darrdh,  50  111.  249. 

{Ji)  McMurtrie  vs.  Bennett,  Harring.  Ch.  124 ;  Hawley  vs.  Sheldon,  Id.  420; 
Hutchenson  vs.  McNutt,  1  Ham.  14 ;  Cabeen  vs.  Gordon,  1  Hill,  Ch.  51 ;  Bene- 
dict vs.  Lynclb,  1  Johns.  Ch.  R.  370  ;  Ohio  vs.  Baum,  6  Ham.  383 ;  Marble  Co. 
vs.  Ripley,  10  Wallace,  339 ;  Ewins  vs.  Gordon,  49  N.  H.  444. 

(i)    McClurken  vs.  Detrich,  33  111.  349. 


BILLS  FOR  SPECIFIC  PERFORMANCE.  319 

Nature  of,  and  When  Proper. 

a  person  receive  a  title  until  he  has  paid  what  he  agreed  to  pay 
for  it.  ( J?') 

Where  a  party  has  failed  withont  sufficient  excuse,  to  execute 
his  part  of  the  contract,  and  there  has  been  no  acquiescence  in  the 
delay,  by  the  other  party,  the  court  will  not  decree  specific  per- 
formance. But  if  one  paily  has  been  prevented,  by  any  good 
cause,  from  performing  his  part  of  the  agreement,  at  the  stipu- 
lated time,  and  the  other  party  has  suffered  no  material  injury 
by  the  delay,  the  court  will  not  refuse  its  aid.  (h) 

A  party  seeking  the  specific  performance  of  a  contract  for 
the  sale  and  conveyance  of  a  tract  of  bind,  cannot  excuse  him- 
self for  not  tendering  the  purchase  money  when  due,  upon  the 
ground  that  the  vendor  has  conveyed  the  land  to  a  third 
pei'son.  {]) 

A  party  cannot  com^^el  the  specific  performance  of  a  contract, 
unless  he  shows  that  he  himself  has  specifically  performed,  or 
can  justly  account  for  the  reason  of  his  non-performance,  (m) 
He  must  show  that  he  has  not  been  in  fault,  but  has  taken  all 
proper  steps  toward  performance  on  his  part,  and  has  been 
ready,  desirous,  and  prompt,  to  perform,  {n) 

If  one  party  has  been  in  default,  and  specific  execution  would 
be  injurious  to  the  other  party,  it  will  not  be  decreed,  {p)  But 
a  failure  to  perform  a  merely  nugatory  act,  is  not  material.  (^) 

{j)  Allison  vs.  Clark,  Breese,  348  ;  Doyle  vs.  Teas,  4  Scam.  202  ;  Ishmeal 
vs.  Parker,  13  111.  324. 

{k)  Longworth  vs.  Taylor,  1  McLean,  395 ;  WJiite  vs.  Law,  7  Vt.  357 
Cleveland  vs.  Benton,  11  Vt.  138;  Ooodell  vs.  Field,  15  Vt.  448;  Hatch  vs 
Cdbh,  4  Johns.  Ch.  R.  559 ;  Lewis  vs.  Woods,  4  How.  Miss.  86. 

(?)     Doyle  vs.  Teas,  4  Scam.  202 ;  see  Shortall  vs.  Mitchell,  57  111.  161. 

(m)  Scott  vs.  Shepherd,  3  Gilm.  483  ;  Brown  vs.  Cannon,  5  Gilm.  174 
Warren  vs.  Richmond,  53  111.52;  Walts  vs.  Waddle,  6  Pet.  389;  Oreenup 
vs.  Strong,  1  Bibb,  590 ;  Bearden  vs.  Wood,  1  A.  K.  Marsh.  450 ;  Logan  vs 
McChord,  Id.  224 ;  Moore  vs.  Skidmore,  6  Litt.  453 ;  Clay  vs.  Turner,  3  Bibb 
52;  Iglehart  vs.  Gibson,  56  111.  81;  Crane  vs.  Decamp,  21  N.  J.  Eq.  414: 
Howe  vs.  Rogers,  32  Texas,  218. 

(w)  Rogers  vs.  Saunders,  16  Maine,  92 ;  Brown  vs.  Haines,  12  Ohio,  1 ; 
Doyle  vs.  Teas,  4  Scam.  202 ;  Kendall  vs.  Almy,  2  Sumner,  278. 

{o)  Vail  vs.  Nelson,  4  Rand.  478  ;  Brashier  vs.  Oratz,  6  Wheat.  528 ;  Bee 
Taylor  vs.  Longworth,  14  Pet.  172  ;  AM  vs.  Johnson,  20  How.  U.  S.  511. 

(p)   Coale  vs.  Barney,  1  Gill  &  J.  324. 


320  BILLS  FOR  SPECIFIC   PERFORMANCE. 

Nature  of,  and  When  Proper. 

Although  great  lapse  of  time  will  not  be  a  bar,  where  the 
complainant  has  been  in  no  default,  and  has  been  reasonably 
active  during  the  whole  time,  in  asserting  his  rights,  and 
endeavoring  to  enforce  performance ;  {q)  yet,  where  no  effort 
had  been  made  by  a  vendee  in  his  lifetime,  nor  by  his  heirs, 
after  his  death,  until  twenty-nine  years  had  elapsed,  and  the 
land  had  risen  in  value,  and  other  circumstances  had  occurred, 
the  lapse  of  time  was  held  a  conclusive  bar.  (r)  On  the  gen- 
eral subject  of  delay,  the  cases  cited  in  the  note  below  are 
important,  {s) 

In  an  ordinary  contract  for  the  sale  of  land,  where  credit  is 
given  and  a  conveyance  is  to  be  made  on  the  payment  of  the 
last  installment,  where  time  is  not  expressly  the  essence  of  the 
contract,  a  court  of  chancery  maj^,  in  its  discretion,  enforce  the 
performance  of  such  a  contract,  although  the  payments  may 
not  have  been  promptly  made.  But  in  so  doing  the  court  will 
inquire  into  all  the  circumstances  attending  the  delay,  and  the 
conduct  of  the  parties.  {£)  Chancery  has  no  power  to  enforce  a 
specific  execution  of  a  contract  contrary  to  the  clearly  expressed 
intention  of  the  parties,  {u) 

(q)    Coulsoii  vs.  Walton,  9  Pet.  62. 

(r)    Holt  vs.  Rogers,  8  Pet.  420. 

(s)  Pratt  vs.  Carroll,  8  Cranch,  471 ;  Williams  vs.  Mattocks,  3  Vt.  189 ; 
Miller  vs.  Bear,  3  Paige,  Cli.  R.  466  ;  Waters,  vs.  Trams,  9  Johns.  R.  450 ; 
Jackson  vs.  Edwards,  22  Wend.  498  ;  Smedley  vs.  Moore,  26  Wend.  238  :  New 
Barhadoes  Toll  Bridge  vs.  Vreeland,  3  Green,  Ch.  157  ;  Haffner  vs.  Dickson, 
2  Har.  &  J.  46  ;  Bichardson  vs.  Baker,  5  Call.  514 ;  Williams  vs.  Lams,  5  Leigh, 
686 ;  McGalliard  vs.  Aiken,  2  Ired.  Ch.  186  ;  Falls  vs.  Carpenter,  1  Dev.  & 
Bat.  Ch.  237  ;  Strickland  vs.  Fowler,  Id.  629 ;  Osborne  vs.  Bremar,  1  Dessau. 
486  ;  Koen  vs.  White,  Meigs,  358 ;  Craig  vs.  Leiper,  2  Yerg.  193  ;  Bracken  vs. 
Martin,  3  Id.  55  ;  Childress  vs.  Holland,  3  Hey.  274  ;  McMillin  vs.  McMillin, 
7  Monr.  560 ;  Johnston  vs.  Mitchell,  1  A.  K.  Marsh.  225  ;  Logan  vs.  McChord, 
2  Id.  224 ;  Eubank  vs.  Hampton,  1  Dana,  343  ;  Broaddus  vs.  Ward,  8  Mo.  217 ; 
Scott  vs.  Barker,  14  Ohio,  547 ;  Mason  vs.  Wallace,  3  McLean,  148  ;  Tieman 
vs.  Boland,  8  Harris,  429 ;  De  Cordova  vs.  Smith,  9  Texas,  129 ;  Smith  vs. 
Hampton,  13  Id.  459 ;  Milnor  vs.  Willard,  34  111.  38 ;  Rose  vs.  Swan,  56 
111.  37. 

{t)  Olover  vs.  Fisher,  11  111.  6fi6  ;  Murphy  vs.  Lockwood,  21  111.  615 ; 
Snyder  vs.  Spaulding,  57  111.  480 ;  Mason  vs.  Wallace,  3  McLean,  148  ;  S.  C.  4 
McLean,  77. 

(«)    Kemp  vs.  Humphreys,  13  111.  573  ;  Stow  vs.  Robinson,  24  111.  532. 


BILLS  FOE  SPECIFIC  PEKFOIiMANCE.  321 

Nature  of,  and  Wlien  Proper. 

It  is  a  general  rule,  that  the  terms  of  the  contract  must  be 
clear,  definite,  and  positive,  and  its  terms  must  be  such  that 
neither  party  could  reasonably  misunderstand  them  ;  nor  should 
it  be  vague  or  uncertain  in  any  of  its  essential   particulars,  (v) 

Where  a  party  has  so  far  performed  his  part  of  a  contract, 
that  he  cannot  be  put  in  statu  quo,  he  is  entitled  to  a  specific 
performance,  and  it  is  not  necessary  to  show  a  literal  perform- 
ance on  his  part,  unless  such  performance  goes  to  the  essence  ol 
the  contract,  (w) 

Where  specific  performance  has  become  impossible,  as  from 
a  subsequent  sale  of  the  subject  matter  of  it,  without  notice, 
courts  of  equity  will  not  decree  a  specific  performance,  though 
the  bill  may  perhaps  be  retained  for  awarding  compensation  in 
damages,  {x) 

Specific  performance  will  not  be  decreed,  at  the  instance  of 
the  vendor,  unless  his  ability  to  make  title  be  unquestionable,  {y} 
to  all  the  lands  contracted  for.  (s)  And  a  court  of  equity  will 
not  force  a  doubtful  title  on  a  purchaser,  {a) 

Before  a  vendor  can  declare  a  forfeiture,  he  must  be  able  to 
tender  a  deed  in  accordance  with  his  bond,  (5) 

If,  from  the  vendor's  negligence  or  default,  the  property  be- 
comes encumbered  by  judgments,  taxes,  forfeitures  or  other- 
wise, before  the  time  for  conveying  the  same,  or  before  he 

{v)  Colson  vs.  Thompson,  2  Wheat.  336 ;  Garr  vs.  Duval,  14  Pet.  77 
Prater  vs.  Miller,  3  Hawks,  628 ;  Montgomery  vs.  Norris,  1  How.  Miss.  499 
Waters  vs.  Brown,  7  J.  J.  Marsh.  123  ;  Mtzpatrick  vs.  Beatty,  1  Gilm.  454 
Pigg  vs.  Corden,  12  Leigh,  69  ;  Millard  vs.  Mamsdell,  Harring.  Ch.  373. 

(w)  McCarkle  vs.  Brown,  9  S.  &  M.  167  ;  VoorJiees  vs.  DeMeyer,  2  Barb.. 
R.  37  ;  SJiaw  vs.  Livermore,  2  Green,  N.  J.  Ch.  338. 

(x)  Woodward  vs.  Harris,  2  Barb.  R.  439 ;  Buttrick  vs.  Holden,  13  Met. 
355  ;  see  Oliver  vs.  Croswcll,  42  111.  41 ;  Fallon  vs.  Railroad  Co.  1  Dillon,  121 ; 
see  Wallace  vs.  McLaughlin,  57  HI.  53. 

iy)  Garnett  vs.  Mason,  2  Brockenbrough's  R.  186  ;  S.  G.  6  Call,  308 ;  Mor- 
gan's Heirs  vs.  Morgan,  2  Wheat.  290 ;  Bank  of  Golumbia  vs.  Hagner,  1 
Pet.  455. 

(z)    Hepburn  vs.  Auld,  5  Cranch,  262. 

{a)  Watts  vs.  Waddle,  6  Pet.  389  •,8.G.l  McLean,  200 ;  8oheir  vs.  Williams^. 
1  Curtis,  479. 

(6)  Baker  vs.  Bishop  Hill  Colony,  45  HI.  264;  Mix  vs.  Beach,  46  IlL  811 ; 
but  see  Boston  vs.  Nichols,  47  HI.  353. 

21 


332      ^    BILLS  FOR  SPECIFIC  PERFORMANCE. 

Nature  of,  and  When  Proper.  » 

offers  to  perform  his  contract,  he  cannot  insist  on  performance 
bj  the  otlier  party  until  he  relieves  the  title  from  such  subse- 
quent encumbrances.  (<?) 

The  right  of  a  purchaser  of  land  from  two  joint  owners,  to 
have  a  specihc  performance  of  the  contract  cannot  be  impaired 
by  reason  merely  that  one  of  the  vendors  has  failed  to  comply 
with  an  agreement  with  the  other  in  respect  to  the  subject 
matter  of  the  contract,  {d) 

Although  courts  of  equity  will  enforce  specifically,  contracts 
relating  to  personalty,  in  many  cases,  yet  they  will  weigh  with 
greater  nicety  contracts  of  this  description  than  such  as  relate 
to  lands,  {e)  And  if  a  breach  of  a  contract  relating  to  per- 
sonal property  may  be  compensated  by  damages,  equity  will 
not,  as  a  general  rule,  interfere,  {f)  The  transfer  of  stock  will 
not  always  be  decreed,  {g)  Though  a  contract  for  insurance,  or 
for  the  delivery  of  a  policy  of  insurance  by  the  company,  will 
be  enforced,  even  after  a  loss,  {h) 

An  agreement  to  sing  at  concerts  will  not  be  specifically 
enforced.  (?")  And  a  husband  will  not  be  compfelled,  specifically, 
to  perform  an  agreement  to  procure  his  wife  to  join  him  in  a 
conveyance  of  real  estate,  {j )  And  where  a  wife  refuses  to 
execute  a  contract  by  her  husband  and  herself,  to  convey  her 
land,  he  will  not  be  compelled  to  convey  his  wife's  estate  to  the 
purchaser,  to  make  compensation  for  the  principal  estate,  [k) 

(c)  Cooper  vs.  Tyler,  46  111.  463 ;  see  Brown  vs.  Cannon,  5  Gilm.  174. 

(d)  Eardmg  vs.  Parsliall,  56  111.  219. 

(e)  Mechanic's  Bank  vs.  Beaton,  1  Pet.  299. 

(/)  Cowles  vs.  Whitman,  10  Conn.  121 ;  Hoy  vs.  Hansborough,  1  Freem.  Ch. 
633 ;  Caldwell  vs.  Myers,  Hardin,  551 ;  Phillips  vs.  Berger,  2  Barb.  E.  608 ; 
Ba/oery  vs.  Spence,  13  Ala.  561 ;  Sullivan  vs.  Tuck,  1  Md.  Ch.  Decis.  59 ; 
Waters  vs.  Howa/rd,  Id.  112 ;  Roundtree  vs.  McLain,  1  Hemp.  245  ;  The  Jus- 
tices vs.  Croft,  18  Geo.  473. 

ig)  Ferguson  vs.  Paschall,  11  Miss.  267 ;  Ross  vs.  Union  Pacific  R.  R.  Co. 
1  Wool.  26. 

{h)  Taylor  vs.  Merchant's  Mre  Ins.  Co.  9  How.  U.  S.  390 ;  see  Carpenter 
vs.  Mutual  Safety  Ins.  Co.  4  Sandf.  Ch.  408;  Commercial  Miitual  M.  Ins.  Co. 
vs.  Union  Mutual  Ins.  Co.  19  How.  U.  S.  318 ;  S.  C.  2  Curtis,  C.  C.  R.  524. 

(t)     Sanquirico  vs.  Benedetti,  1  Barb.  315. 

{j)    Clark  vs.  Savier,  7  Watts,  107  ;  Weed  vs.  Terry,  2  Doug.  344. 

(A)    Clark  vs.  Reins,  12  Gratt.  Va.  98. 


BILLS  FOR  SPECIFIC  PERFORMANCE.  323 

Nature  of,  and  When  Proper  —  Lost  Instruments. 

The  specific  performance  of  a  mere  voluntary  agreement  will 
not  be  enforced ;  (Z)  a  voluntary  settlement  will,  however,  be  en- 
forced, at  the  instance  of  a  child,  against  the  heir,  if  the  former 
have  the  preferable  equity ;  (??^)  and  it  has  been  held  that  a 
voluntary  agreement,  if  executed,  w^ould  be  aided  in  ecpity.  (^) 

A  contract  to  build  a  railroad  will  not  be  enforced  in  equity.  (<?) 

A  contract  to  build  a  hotel,  at  joint  risk  and  expense,  was 
enforced,  where  one  of  the  parties  had  performed  his  part  of 
the  contract,  {j)) 

A  specific  performance  of  a  contract,  to  indemnify  against  a 
pecuniary  liability,  may  be  enforced,  {q) 

The  fact  that  damages  may  be  recovered  at  law,  is  no  reason, 
of  itself,  why  performance  should  not  be  decreed  ;  (r)  nor  is  the 
commencement  of  a  suit  at  law,  of  itself,  a  bar.  is)  Perform- 
ance may  be  decreed,  in  a  proper  case,  where  the  party  has  lost 
his  remedy  at  law.  {t)  But  specific  performance  of  a  contract 
will  not  be  decreed,  where  the  law  would  not  allow  damages,  {u) 

In  applications  for  specific  performance  of  agreement,  it  is 
immaterial  what  the  form  of  the  instrument  is,  whether  it  is  a 
covenant  or  a  penal  bond,  with  a  condition  to  do  the  thing,  {v) 

Lost  instrument. — A  specific  performance  of  a  contract  for 
the  sale  of  land  will  be  decreed,  although  the  contract  may  be 
lost,  on  showing  clearly  the  loss  of  it,  and  its  contents,  {w) 

(J)  Shepherd  vs.  8hep7ierd,  1  Md.  Ch.  Decis.  244 ;  Yasser  vs.  Vasser,  23 
Miss.  378 ;  Boze  vs.  Davis,  14  Texas,  331. 

(m)  Haines  vs.  Haines,  6  Md.  435. 

{n)  Read  vs.  Long,  4  Yerg.  68. 

{o)  Ross  vs.  Union  Pacific  R.  R.  Co.  1  Wool.  26 ;  Fhilton  vs.  Railroad  Co. 
1  Dillon,  121. 

{p)  Berchett  vs.  Boiling,  5  Munf.  462. 

{q)  Chamberlain  vs.  Bhie,  6  Blackf.  491 ;  see  Robinson  vs.  Cathcart,  2 
Cranch,  C.  C.  590. 

(r)    Washburn  vs.  Dewey,  17  Vt.  92. 

(«)    Brush  vs.  Vandenbergh,  1  Edw.  Ch.  21. 

(<)    Rogers  vs.  Saunders,  16  Maine,  92. 

(u)  Allen  vs.  Beal,  3  A.  K.  Marsh.  554 ;  see  however  OetcheU  vs.  Jewett, 
8  Greenl.  350. 

{v)    Broadwell  vs.  Broadwell,  1  Gilm.  470. 

(ic)  Gowkoski  vs.  Day,  16  111.  259. 


324  BILLS  FOR  SPECIFIC  PERFORMANCE. 

Of  an  Award  —  Parol  Contracts. 

Of  an  award. — The  peformance  of  an  award  will  be  en- 
forced, on  the  ground  that  such  performance  is  an  execution  of 
the  agreement  of  the  parties,  as  fixed  by  the  arbitrators,  {x) 
But  the  enforcement  of  an  award  for  the  payment  of  money 
has  been  refused  ;  (y)  although  where  some  other  specific  act 
is  prescribed  by  the  award,  its  performance  will  be  enforced,  {z) 

Specific  performance  of  an  agreement  to  refer  a  disputed 
matter  to  arbitrators,  cannot  be  decreed ;  {a)  although  it  has 
been  held  that  submission  by  adult  heirs,  of  an  equitable  claim 
to  land,  of  which  their  ancestor  died  seized,  may  be  enforced.  (J) 

Parol  contracts. — The  specific  performance  of  a  parol  con- 
tract for  the  conveyance  of  land  will  be  enforced  where  the 
consideration  has  been  paid,  and  the  purchaser  has  taken 
possession ;  (c)  or  where  the  vendee  has  paid  part  of  the  con- 
sideration, and  taken  possession  and  made  valuable  improve- 
ments, and  tendered  the  balance  of  the  purchase  money  before 
the  expiration  of  the  contract,  though  the  vendor  has  sold  the 
land  to  a  second  vendee,  (c^) 

To  entitle  a  party  to  a  specific  perfornaance  of  a  verbal 
agreement,  the  proofs  must  clearly  establish  a  contract,  and  all 
its  terms  and  conditions,  and  that  the  purchaser  has  relied 
upon  and  performed  his  part  of  the  agreement,  and  that  it  has 

{x)  McNeil  vs.  Magee,  5  Mason,  244 ;  Ballance  vs.  Underldll,  3  Scam. 
453 ;  Jones  vs.  Mill  Creek  Corporation,  4  Pick.  507 ;  Cook  vs.  Vick,  2  How. 
Miss.  R.  882. 

{y)    Turpin  vs.  Bauton,  Hardin,  312. 

(2)  Story  vs.  Normick  &  Wos.  R.  R.  Co.  24  Conn.  94 ;  Kirksey  vs.  Fike,  27 
Ala.  383. 

{a)  Copper  YS.Wells,  Saxon,  10;  Tobey  vs.  County  of  Bristol,  3  Story,  800; 
Conner  vs.  Brake,  1  Ohio  State  R.  166. 

(b)  Boyd  vs.  Magruder,  2  Rob.  Va.  761. 

(c)  Ramsey  vs.  Linton,  25  111.  114 ;  Oihhs  vs.  Blackwell,  37  111.  191 ;  Clay- 
ton vs.  Frazier,  38  Texas,  91;  Langston  vs.  Bates,  84  111.  524. 

(d)  Blunt  vs.  Tomlin,  27  111.  93 ;  Keys  vs.  Test,  33  111.  316  ;  see  De  Wolf 
vs.  Pratt,  42  111.  198 ;  Cnamlers  vs.  Roice,  36  111.  171  ;  see  HarsJia  vs.  Reid, 
45  N.  Y.  415  ;  Howe  vs.  Rogers,  32  Texas,  218 ;  Freeman  vs.  Freeman,  43 
N.  Y.  34. 


BILLS  FOE  SPECIFIC  PERFORMANCE.  325 

Parol  Contracts  —  Parties  to. 

been   so   far  performed  as  to  take  it  out  of  the  statute  of 
frauds,  (e) 

A  parol  contract  by  a  father  to  convey  to  his  sou,  on  con- 
dition of  his  taking  possession  and  making  improvements,  on 
a  proper  and  clear  case  shown,  will  be  enforced.  {/) 

SECTION  II. 
PAKTIES    TO. 

In  case  of  a  contract  for  the  sale  of  real  estate,  if  the  vendor 
should  die,  and  a  bill  is  brought  by  his  personal  representa- 
tives for  a  specific  performance  of  the  contract,  all  the  heirs  of 
the  vendor  ought  to  be  made  parties,  either  as  complainants  or 
as  defendants,  before  a  specific  performance  is  decreed,  {g)  For 
the  same  reason,  if  the  vendee  should  die,  on  a  like  bill 
brought  by  the  vendor  or  his  personal  representatives  for  a 
specific  performance,  the  heirs,  or  devisees,  if  any,  of  the  ven- 
dee, as  well  as  his  personal  representatives,  should  be  made 
parties  to  the  bill.  (A) 

Where  a  vendor  has,  by  his  bond  or  covenant,  bound  his 
heirs  to  the  performance  of  the  obligation  or  covenant,  if  he 
should  die,  and  a  bill  should  be  brought  for  specific  perform 
ance  against  the  heirs,  the  executor  or  administrator  would  be 
a  necessary  party,  (i) 

The  general  rule  is,  that  the  parties  to   the   contract   are 

the  only  proper  parties  to  a  suit  for  a  specific  performance ; 

and,  except  in  the  case  of  an  assignment  of  the  entire  contract, 
• 

{e)  Hartwell  vs.  Black,  48  111.  301;  see  Trailar  vs.  Hill,  2  Gilm.  364; 
Hawkins  vs.  Hunt,  14  111.  42 ;  Peckham  vs.  Barke?',  8  R.  I.  17 ;  Welsh  vs. 
Bayard,  21  N.  J.  Eq.  186 ;  Hedrick  vs.  Hern,  4  W.  Va.  620. 

(/;  See  Bright  vs.  Bright,  41  111.  97  ;  JSfeale  vs.  JYeale,  9  Wallace,  1 ;  Qal- 
iraith  vs.  Oalbraith,  5  Kansas,  402. 

ig)  Story's  Eq.  PI.  §  160  ;  Morgan  vs.  Morgan,  2  Wheat.  297,  298 ;  Ed- 
wards on  Parties,  129-136 ;  Calvert  on  Parties,  163-170 ;  Roberts  vs.  Mar- 
chant,  1  Hare,  547. 

(/i)    Townsend  vs.  Camperdoicn,  9  Price,  130  ;  Story's  Eq.  PI.  §  160, 177. 

(i)  Story's  Eq.  PI.  §  173 ;  Knight  vs.  Knight,  3  P.  Wms.  333  ;  Plunkett 
vs.  Benson,  2  Atk.  51 ;  Coop.  Eq.  PI.  38,  39. 


326  BILLS  FOE  SPECIFIC  PERFOEMANCE. 

Parties  to  —  Frame  of  Bill. 

there  must  be  some  special  circumstances  to  authorize  a  de- 
parture from  the  rule,  {j) 

All  the  heirs  of  an  intestate  as  well  as  the  administrator, 
should  be  made  parties  to  a  bill  in  chancery  to  enforce  the 
specitic  performance  of  a  contract  made  by  the  intestate  in  his 
lifetime,  to  convey  a  tract  of  land.  {Jc) 

SECTION  III. 

FRAME    OF    BILL. 

The  bill,  in  cases  of  specific  performance,  should  describe 
the  land  with  such  accuracy  as  to  enable  the  court  to  decree  a 
conveyance,  il) 

The  complainant  should  set  out  in  his  bill  the  contract 
according  to  its  legal  effect,  and  should  aver  a  performance 
of  all  the  conditions  precedent  on  his  part ;  {tu)  but  a  general 
allegation  that  he  has  "  done  all  that  he  was  bound  by  the  con- 
tract to  do,"  is  held  insufficient ;  the  particular  facts  which  he 
has  performed  should  be  stated,  in  order  that  the  court  may 
determine  whether  he  has  done  all  that  he  ought,  {n)  Where, 
however,  the  complainant  has  partially  performed  the  contract 
on  his  part,  a  formal  allegation  in  the  bill,  that  he  is  ready  to 
complete  the  performance,  is  unnecessary.  {6) 

The  bill  may  be  framed  so  as  to  obtain  specific  performance 
or  cancellation  of  the  contract,  {p) 

If  the  complainant  wishes  to  set  off  against  the  amount  to 
be  paid  by  him,  an  indebtedness  to  him  from  the  other  party, 
he  must  lay  the  proper  foundation  for  it  iit  his  bill,  or  he  can- 
not have  the  same  allowed,  {rj) 

ij)  Willard  vs.  Taylor,  8  Wallace,  557  ;  Tasker  vs.  Small,  3  Mylne  &  Craig, 
69  ;  Story's  Eq.  PI.  §  177,  b ;  Gibbs  vs.  BlacTcwell,  37  111.  191. 

(k)    Duncan  vs.  Wickliffe,  4  Scam.  453  ;  Mix  vs.  Beach,  4G  111.  311. 

{])     Gray  vs.  Davis,  3  J.  J.  Marsh.  381. 

{m)  Bates  vs.  Wheeler,  1  Scam.  54;  see  Morton  vs.  Smith,  86  111.  117. 

(«J    Davla  vs.  Harrison,  4  Litt.  261. 

(o)    Hatcher  \s.  Hatcher,  1  McMullen,  Ch.  311 ;  Roby  vs.  Cossitt,  78  111.  638. 

ip)  Mills  vs.  Metcalf,  1  A.  K.  Marsh.  477 

(g)    Scott  vs.  Shepherd,  3  Gilin.  483. 


BILLS  FOR  SPECIFIC  PERFORMANCE.  327 

Tender  — Form  of  Bill. 

The  complainant  need  not  at  his  peril  state  the  precise 
anionnt  due  on  the  contract.  He  may  state  his  case  most 
favorable  to  himself,  and  if,  npon  the  equities  of  the  case,  the 
court  should  decree  a  difierent  amount,  be  can  then  conform  to 
its  judgment,  (r) 

Tender. — It  is  not  only  necessary  that  a  party  asking  to 
enforce  a  contract  for  the  purchase  of  a  tract  of  land,  should 
make  a  tender  of  the  purchase  money,  but  he  must  bring  the 
money  into  court,  and  deposit  it  with  the  clerk,  {s) 

No.  1'21.     Bill  for  sjpecific  performance  of  a  written 
agreement  —  l)y  a  vendee  vs.  vendor. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  one  C.  D.,  being,  or  pretending  to  be 
seized  and  possessed  in  fee  simple  of  the  following  described  real 

property,  situate,  lying  and  being  in  the  county  of ,  in  the 

state  of ,  to  wit:  {Here  describe  the pr^erniscs)  and  being  so 

seized,  on  that  day,  entered  into  a  written  agreement  with  your 
orator,  for  the  sale  of  the  same,  wliich  said  agreement  was 
signed  by  the  said  C.  D.  and  your  orator,  and  by  which  the 
said  C.  D.  covenanted  and  agreed  for  himself,  his  heirs,  execu- 
tors and  administrators,  for  and  in  consideration  of  the  sum  of 

dollars,  to  be  paid  as  hereinafter  mentioned,  well  and 

truly  to  convey  by  a  good  and  sufficient  warranty  deed,  in  fee 
simple,  to  your  orator,  his  heirs  or  assigns,  the  tract  or  parcel 
of  land  above  described ;  and,  in  consideration  whereof,  your 
orator  covenanted  and  agreed  to  pay  the  said  C.  D.,  his  heirs, 

executors,  or  administrators,  the  said  sum  of dollars,  in 

manner  following,  to  wit :  {Here  state  the  manner  of  payments, 
as  in  agreement^  as  by  the  said  agreement,  ready  to  be  pro- 
duced in  court,  and  a  copy  of  which,  hereto  attached  and  filed, 
marked  "  Exhibit  A,"  and  made  a  part  of  this  bill,  will  more  fully 
appear. 

(r)   Hull  vs.  Peer,  2"  111.312. 

(s)  Doyle  vs.  Teas,  4  Scam.  202;  WrigM  ys.  MeNeely,  11  111.  241;  Be 
Wolfe  vs.  Long,  2  Gilm.  679  ;  see  Webster  vs.  French,  11  111.  254  ;  Aiiderson 
vs.  White,  27  111.  63 ;  Irwin  vs.  Bleakley,  67  Pa.  St.  R.  24 ;  Deichman  vs. 
Deichman,  49  Mo.  107. 


328  BILLS  FOR  SPECIFIC  PEEFORMANCE. 

Forms  of  Bills. 

Your  orator  further  represents,  that  he  has  always  been  wil- 
ling and  ready  to  comply  with  the  terms  of  said  agreement  on 
his  part  to  be  performed ;  that  on,  etc.,  he  applied  to  the  said 

0.  D.,  and  oliered  to  pay  him  the  sum  of dollars,  being 

the  balance  then  due  the  said  C.  D.,  under  the  said  agreement, 
on  his  delivering  to  your  orator  a  sufficient  warrant}'  deed  for 
the  said  premises,  according  to  the  said  agreement ;  yet  the  said 
C.  D.  refused,  and  still  refuses,  to  comply  with  the  agreement 
on  his  part ;  although  your  orator  is,  and  always  has  been, 

ready  to  pay  the  said  sum  of dollars,  and  to  fully  pertbrm 

his  part  of  the  said  agreement,  whenever  the  said  C.  D,  will 
make  and  deliver  to  him  a  good  and  sufficient  deed  for  the 
premises  aforesaid. 

Forasmuch,  therefore,  as  your  orator  is  witliout  remedy  in 
the  premises,  except  in  a  court  of  equity,  and  to  the  end  that 
the  said  C.  D.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  made  to  make  full  and  direct  answer  to  the  same,  hut  not 
under  oath,  the  ansioer  under  oath  being  hereby  waived i  and 
that  the  said  defendant  may  be  decreed  specifically  to  perform 
the  said  agreement  entered  into  with  your  orator  as  aforesaid, 
and  to  make  a  good  and  sufficient  deed  of  conveyance  to  your 
orator  for  the  said  described  premises,  your  orator  being  ready 
and  willing,  and  hereby  offering  specifically  to  perform  the  said 
agreement  on  his  part,  and  upon  the  defendant's  making  out  a 
good  and  sufficient  title  to  the  said  premises,  and  executing  a 
proper  conveyance  thereof  to  your  orator,  pursuant  to  the  terms 
of  the  said  agreement,  to  pay  to  the  defendant  the  residue  of 
the  said  purchase  money  ;  and  that  your  orator  may  have  such 
other  and  further  relief  as  equity  may  recjuire,  and  to  your 
honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 
chancery,  directed  to  the  sheriff  of  the  said  county  of ,  com- 
manding him  that  he  summon  the  defendant,  C.  D.,  to  appear 

before  the  said  court,  on  the  fii-st  day  of  the  next  term 

thereof,  to  be  held  at  the  court  house  in ,  in  the  county 

of aforesaid,  then  and  there  to  answer  tJiis  bill,  etc. 

Sol.  for  Conijoilainant. 

No.  1^'2.     Bill  for  S2)ecifc  ijerforrnance  of  a  written 
agreement  —  hij  a  vendor  vs.  vendee. 

To  the  Honorable ,  Judge  of  the Court,  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting  : 

Your  orator,  A.  B.,  of.  etc.,  respectfully  represents  unto 
your  honor,  that  your  oi-utor  Ijeing  seized  in  fee  simple  of  the 


BILLS  FOE  SPECIFIC  PERFORMANCE.  329 

Forms  of  Bills. 


following    described    real   property,   with   its   appurtenances, 

situated  in  the  county  of ,  in  the  state  of ,  to  wit: 

{Here  describe  the  2:)rem'ises)  and  being  desirous  of  selling  such 
premises,  and  one  C  D.  being  minded  to  purchase  the  same, 
your  orator  and  the  said  C.  D.,  on,  etc.,  entered  into  and 
signed  a  memorandum  of  agreement,  in  writing,  respecting  the 
said  sale  and  purchase,  in  tlie  words,  or  to  the  purport  and 
effect  following,  to  wit :  {Here  state  the  agreement  verbatim) 
as  by  the  said  memorandum  of  agreement,  ready  to  be  pro- 
duced in  court,  will  fully  appear. 

And  your   orator  further  represents  that  the   said    C.   D. 

paid  to  your  orator  the  sum  of dollars,  part  of  the  said 

purchase  money,  at  the  time  of  signing  the  said  agreement ; 
and  your  orator  delivered  an  abstract  of  his  title  to  the  said 
premises  to  the  said  C.  D. ;  and  your  orator  has  always  been 
ready  and  willing  to  perform  his  part  of  the  said  agreement, 
and,  on  being  paid  the  remainder  of  his  said  purchase  money, 
with  interest,  to  convey  the  said  premises  to  the  said  C.  D. 
and  his  heirs,  and  to  let  him  into  possession  and  the  receipt 
of  the  rents  and  profits  thereof  from  the  time  in  the  said  agree- 
ment in  that  behalf  mentioned ;  and  your  orator  hoped  that 
the  said  C.  D.  would  have  performed  the  said  agreement  on 
his  part,  as  in  justice  and  equity  he  ought  to  have  done. 

But  now,  so  it  is,  may  it  please  your  honor,  that  the  said 
C  D.  alleges  that  he  is  and  always  has  been  ready  and  willing 
to  pei'form  the  said  agreement  on  his  part  in  case  your  orator 
could  have  made,  or  can  make,  him  a  good  and  sufficient  title 
to  the  said  premises.  But  that  your  orator  is  not  able  to  make 
a  good  title  thereto  ;  whereas,  on  the  contrary,  your  orator 
charges  and  insists  that  he  can  make  a  good  and  sufficient  title 
to  the  said  premises. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  made  to  make  full  and  direct  answer  to  the  same,  hut  not 
under  oath,  the  ansioer  under  oath  heing  hereby  waived i  and 
that  the  said  C  D.,  defendant,  may  be  compelled  by  the  decree 
of  this  honorable  court,  specifically  to  perform  the  said  agree- 
ment with  your  orator,  and  to  pay  to  your  orator  the  ren minder 
of  the  said  purchase  money,  with  interest  on  the  same  from 
the  time  the  said  purchase  money  ought  to  have  been  paid, 
your  orator  being  willing,  and  hereby  offering,  specifically  to 
perform  the  said  agi-eement  on  his  part,  and  on  being  paid  the 
said  remaining  purchase  money  and  interest,  to  execute  a 
proper  conveyance  of  the  said  described  premises  to  the  said 


330  BILLS  FOR  SPECIFIU    I^EKFURMANCE. 

Forms  of  Bills. 

C.  D.,  and  to  let  him  into  possession  of  the  rents  and  profits 
thereof,  according  to  the  tenor  and  effect  of  the  said  agree- 
ment ;  and  that  your  orator  may  have  such  other  and  further 
relief  as  equity  may  require  and  to  your  honor  shall  seem  meet. 
.  May  it  please  your  honor  to  grant   the  writ  of   summons 

in  chancery,  directed  to  the  sheriff  of  the  said  county  of , 

commanding  him  that  he  summon  the  said  defendant,  C.  D.» 
to  appear  before  the  said  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in ,  in 

the  county  of ,  aforesaid,  then  and  there  to  answer  this 

bill,  etc. 

,  Sol.  for  Complainant. 

]^o.  1'23.    Bill  for  sjpecifio  perforina7ice,  onaJjondfor  a  deed  ; 
vendee  vs.  the  legal  representatives  of  vender. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor  tliat,  on,  etc.,  one  C.  D.,  late  of,  etc.,  being  the  owner  in 
fee  simple,  of  the  following  described  real  property,  situate, 
lying  and  being  in  the  county  of,  etc.,  known  and  designated 
as  follows,  to  wit :  [Here  insert  description^  And  being 
desirous  to  sell  the  said  premises,  and  your  orator  being  mindful 
to  purchase  the  same,  the  said  C.  D,,  on  the  day  aforesaid,  entered 
into  a  certain  writing  obligatory  or  bond  for  a  deed  with  your 
orator,  for  the  sale  thereof  to  him,  which  said  writing  obliga- 
tory or  bond,  bearing  date  on  the  day  and  year  above  mentioned, 
and  signed  and  sealed  by  the  said  0.  D.,  is  in  the  words  and 
figures  following,  to  wit:  {llere  set  out  the  hond  verbatim,) 
as  by  the  said  writing  obligatory  or  bond  for  a  deed,  ready  to 
be  produced  in  court,  will  more  fully  appear. 

Your  orator  further  represents,  that  on,  etc.,  he  paid  the  said 

C.  D.  the  sum  of dollars,  being  a  part  of  the  purchase 

money  due  by  the  terms  of  the  said  writing  obligatory,  which 
said  sum  was  received  by  the  said  C.  D.,  and  indorsed  by  him 
upon  the  said  writing  obligatory. 

Your  orator  further  represents,  that  on  or  about  the day 

of ,  18 — ,  the  said  C.  D.  departed  this  life,  intestate,  leav- 
ing D.  D.,  his  widow,  and  E.  D.  and  F.  D.,  his  children  and 
onl}'  heirs  at  law  ;  and  that  afterwards,  on,  etc.,  one  E.  F.,  of, 

etc.,  was  duly   appointed  by  the court  of  said  county  of 

,  administrator  of  the  estate  of  the  said  C.  D.,  and  then  and 

there  took  upon  himself  the  burden  of  such  administration. 


BILLS  FOR  SPECIFIC  PERFOKMAKCE.  331 

Forms  of  Bills. 

Your  orator  farther  represents  that  afterwards,  on,  etc.,  he 

paid  to  the  said  E.  F.,  administrator  as  aforesaid,  the  sum  of 

doHars,  being  the  balance  due  to  said  estate  of  the  said  C.  D., 
according  to  the  terms  and  conditions  of  said  writing  obli- 
gatory. 

Your  orator  further  represents,  that  the  said  C.  D.,  in  his  life- 
time, and  the  said  E.  F.,  administrator  as  aforesaid,  since  the 
death  of  the  said  C.  D.,  have  wholly  failed  to  execute  and 
deliver  to  your  orator  a  good  and  sufficient  deed  of  conveyance 
for  the  said  premises ;  the  said  E.  F.  insisting  that  he,  as  such 
administrator,  has  no  power  or  authority  to  do  so. 

And  your  orator  further  shows  that  the  said  E.  D.  and  F.  D. 

are  minors,  under  the  age  of years,  and  have  no  legal 

guardian. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in  the 
premises,  except  in  a  court  of  equity  ;  and  to  the  end  that  the 
said  D.  D.,  E.  D.,  F.  D.  and  E.  F.,  administrator,  of  the  estate 
of  C.  D.,  deceased,  who  are  made  parties  defendant  to  this  bill, 
may  be  required  to.  make  full  and  direct  answer  to  the  same, 
but  not  under  oath,  tlie  answer  under  oath  heing  hereby 
waived',  that  a  guardian  ad  litem  may  be  appointed  for  the 
infant  defendants  named  above ;  that  a  good  and  perfect  deed 
of  conveyance  may  be  made  to  your  orator  for  the  premises 
aforesaid,  that  a  commissioner  may  be  appointed  by  the  court 
to  make  and  execute  such  deed,  or  that  the  master  in  chancery 
of  this  court  be  directed  to  execute  the  same ;  and  that  your 
orator  may  have  such  other  and  further  relief  as  equity  may 
require  and  to  your  honor  shall  seem  meet. 

And  may  it  please  your  honor  to  grant  the  writ  of  summons 

in  chancery,  directed  to  the  sheritf  of  the  said  county  of , 

commanding  him  that  he  summon  the  defendants  above  named, 
to  appear  before  the  said  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in ,  in  the 

county  of aforesaid,  then  and  there  to  answer  this  bill,  etc. 

Sol.  for  Com/plainant. 

No.  l^Jf..    J^ill  for  speciJiG performance,  by  lessee  against  lessor y 
of  a  written  agreement  for  a  lease  of  a  house. 

To  the  Honorable ,  Judge  of  the court  of  the  County 

of ,  in  the  State  of , 

Li  Chancery  sitting: 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  C.  D.,  of,  etc.,  the  defendant  hereinafter  named, 
being  possessed  of  the  premises  described  as  follows,  to  wit : 


332  BILLS  FOR  SPECIFIC  PERFOEMANCE. 

Forms  of  Bills. 

{Here  insert  description?)  And  being  desirous  to  let  tlie  same, 
on,  etc.,  proposed  and  agreed  to  lease  to  your  orator  the  same, 
with  the  appurtenances,  and  thereupon  your  orator  and  the  de- 
fendant executed  a  certain  memorandum  or  agreement  of  that 
date,  in  the  words  and  ligures  following,  that  is  to  say :  {Here 
set  out  copy  of  agreement  verbatim,)  as  by  the  said  agreement, 
ready  to  be  produced  in  court,  will  appear. 

Your  orator  further  represents,  that  in  expectation  and  confi- 
dence that  a  lease  would  have  been  executed  to  him  of  the 
premises,  pursuant  to  the  terms  of  the  said  agreement,  your 
orator  has  expended  sundry  sums  of  money  in  the  said  premises ; 
and  has  always  been  ready  to  perform  his  part  of  the  said 
agreement,  and  to  accept  a  lease  of  the  said  premises,  pursuant 
to  the  terms  thereof.  And  for  that  purpose  caused  a  draft  of  a 
lease  to  be  drawn  pursuant  to  the  terms  of  the  said  agreement, 
and  tendered  the  same  to  the  defendant  for  his  perusal  and 
approbation,  but  he  refused  to  accept  or  peruse  the  same.  And 
your  orator  has  frequently  applied  to  the  defendant  and  request- 
ed him  to  execute  to  your  orator  a  lease  of  said  premises  con- 
formable to  the  said  agreement.  And  your  orator  well  hoped 
that  no  dispute  would  have  arisen,  touching  the  said  agreement 
and  the  leasing  of  said  premises,  but  that  the  defendant  would 
have  complied  with  the  reasonable  request  of  your  orator,  as  in 
equity  he  ought  to  have  done.  But  now  so  it  is,  the  defendant 
pretends  that  no  such  agreement  was  ever  entered  into  between 
your  orator  and  the  defendant,  or  any  agreement,  or  that  he 
consented  to  grant  a  lease  to  your  orator,  whereas  your  orator 
charges  the  contrary  of  such  pretenses  to  be  the  truth.  Never- 
theless the  defendant  refuses  to  comply  with  your  orator's  said 
reasonable  requests,  or  to  perform  the  aforesaid  agreement. 

Forasmuch,  therefore,  as  your  orator  is  without  an  adequate 
remedy  in  the  premises,  except  in  a  court  of  equity;  and  to 
the  end  that  the  said  C.  D.,  who  is  made  party  defendant  to  this 
bill,  may  be  required  to  make  full  and  direct  answer  to  the 
same,  hut  not  under  oath,  the  answer  under  oath  heing  hereby 
waived  I  that  the  court  may  decree  that  the  said  agreement 
may  be  specifically  performed  and  carried  into  execution;  that  the 
defendant  may  be  decreed  to  execute  a  lease  of  the  said  premises 
to  your  orator  according  to  the  terms  of  said  agreement,  your 
orator  hereby  ofiering  to  execute  a  counterpart  thereof,  and  in 
all  other  respects  to  perform  his  part  of  the  said  agreement ; 
and  that  your  orator  may  have  such  other  and  further  relief  in 
the  premises  as  equity  may  require  and  to  your  honor  shall 
seem  meet. 

May  it  please  your  honor  to  gi-ant  the  writ  of  summons  in 


BILLS  FOK  SPECIFIC  PERFORMANCE.  333 

Decree  —  Declaration  of  Right  to. 
chancery,  directed  to  tlie  sheriff  of  the  said  county  of' 


commanding  liim  that  he  summon  the  defendant,   C  D.,  to 

appear  before  tlie  said  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in ,  in  the 

county  of aforesaid,  then  and  there  to  answer  this  bill,  etc. 

Sol.  for  Complainant. 

SECTION  IV. 
DECKEE. 

Declaration  of  right  to  sjpecific  ^performance. — According  to 
the  old  practice,  there  were  two  ways  of  framing  a  decree  in  a 
suit  for  specific  performance.  The  one  was  to  declare  that  the 
complainant  was  entitled  to  a  specific  performance,  if  a  good 
title  could  be  shown,  and  then  to  direct  a  reference  as  to  the 
title ;  the  other,  to  refer  the  title  to  the  master,  and  to  follow 
up  that  direction  by  a  declaration,  that  if  a  good  title  was 
shown,  the  agreement  ought  to  be  specifically  performed,  {t) 
And  the  omission  of  this  declaration  is  often  attended  with  in- 
convenience, {u) 

Where  the  question  of  title  is  not  the  only  issue,  but  the  de- 
fendant resists  specific  performance  on  any  other  ground,  it  was 
specially  necessary  that  a  declaration  that  if  a  good  title  was 
shown,  the  agreement  ought  to  be  performed,  should  be  insert- 
ed, (■v)  Of  late,  however,  it  is  seldom  inserted,  {w)  llTeverthe- 
less,  where  a  reference  of  the  title  is  directed,  it  will,  it  seems, 
be  implied,  {x) 

Where  a  reference  of  title  is  directed,  the  declaration  as  to 
the  right  to  specific  performance  is  usually  made  on  further 
directions,  {y) 

(<)     Seaton  on  Decrees,  209;  Stevens  vs.  Quppy,  3  Russ.  182. 

{u)   Id.  lb. ;  Mole  vs.  Smith,  Jac.  495. 

(«)    Seaton  on  Decrees,  210 ;  Pitt  vs.  Davis,  3  Russ.  182,  note. 

(w)  Harding  vs.  Beckford,  cited  in  Seaton  on  Decrees,  210 ;  Burroughs 
vs.  Oakley,  3  Swanst.  172 ;  Le  Grand  vs.  WhiteJiead,  3  Russ.  309,  note ;  but 
Bee  Burton  vs.  Todd,  1  Swanst.  258. 

{x)  Seaton  on  Decrees,  210 ;  see  Mole  vs.  Smith,  Jac.  494 ;  Le  Grand  vs. 
Whitehead,  1  Russ.  309. 

{y)   Seaton  on  Decrees,  210 ;  Bridges  vs.  Robinson,  3  Mer,  694. 


334  BILLS  FOR  SPECIFIC  PEEFORMANCE. 

Decree  —  Reference  of  Title. 

Where  specific  performance  is  decreed  witliout  a  reference 
of  title,  it  will  be  made  upon  the  original  hearing,  {z) 

Reference  of  title. — Generally,  either  the  vendor  or  the  pur- 
chaser may  insist  upon  a  reference  of  the  title  in  the  first 
instance ;  the  vendor  being  entitled  to  the  opportunity  of  per- 
fecting it,  and  the  purchaser  of  fully  investigating  it,  before  the 
master.  But  either  party  may  preclude  himself  from  this  right 
by  his  mode  of  pleading,  {a)  So  where  the  acts  of  the  pur- 
chaser amounted  to  a  waiver  of  his  right,  specific  performance 
was  decreed  in  the  first  instance ;  (J)  but  taking  possession  and 
acts  of  ownership  were  held  not  to  be  a  waiver  under  the  cir- 
cumstances, (c) 

The  direction  is  to  inquire  whether  the  vendor  can  make 
title,  not  whether  he  could  do  so  at  the  time  of  entering  into 
the  contract,  {d)  If  a  title  can  be  made  before  the  hearing,  {e) 
or  before  the  report,  {f )  or  upon  the  hearing  for  further  direc- 
tions, {g)  it  is  sufiScient. 

Formerly  the  court  directed  a  reference  of  the  title  only  in 
the  first  instance,  and,  upon  further  directions,  directed  a  refer- 
ence back  to  inquire  at  what  time  a  good  title  could  be  made, 
with  a  view  to  costs.  (A)  But  now  the  reference  will  be 
extended  to  both  objects  in  the  first  instance,  {i)  If  a  refer- 
ence  for   the   latter   purpose   is    not    obtained    in    the    first 

(z)  Margravine  of  AuspacJi  vs.  Noel,  1  Mad.  317  ;  Dakin  vs.  Cope,  3  Russ. 
175. 

(a)    Jenkins  vs.  HiUs,  6  Ves.  653,  654 ;  Seaton  on  Decrees,  210. 

(6)  Fleetwood  vs.  Oreen,  15  Ves.  594 ;  Margravine  of  Auspach  vs.  Noel, 
1  Mad.  310  ;  see  Fludyer  vs.  Cocker,  12  Ves.  25  ;  Balfour  vs.  Welland,  16  Ves. 
151. 

(c)  Burroughs  vs.  Oakley,  3  Swanst.  159. 

(d)  Langford  vs.  Pitt,  2  P.  Wms.  630. 

(e)  Wynn  vs.  Morgan,  7  Ves.  203. 

(/)  Langford  vs.  Pitt,  2  P.  Wms.  630 ;  Jenkins  vs.  Hiles,  6  Ves.  655 ;  Seton 
vs.  Slade,  7  Ves.  279 ;  Mortlock  vs.  Buller,  10  Ves.  315 ;  Hepburn  vs.  Dunlap, 
1  Wheat.  179 ;  see  Coffin  vs.  Cooper,  14  Ves.  205. 

{g)    Paton  vs.  Rogers,  6  Mad.  256. 

(h)    Gibson  vs.  Clarke,  2  V.  &  B.  103. 

(i)  Seaton  on  Decrees,  211 ;  Wright  vs.  Bond,  11  Ves.  39;  Jennings  va. 
Hopton,  1  Mad.  211 ;  Anon.  3  Mad.  495. 


' 


BILLS  FOR  SPECIFIC  PERFORMANCE.  335 

Decree  —  Payment  of  Purchase  Money,  etc.  —  Form  of  Decree. 

instance,  the  defeiRlant   is  not  precluded    from    obtaining  it 
after  the  report,  {j) 

Payment  of  purchase  money  and  execution  of  conveyance. 
The  payment  of  the  purchase  money  and  the  execution  of 
the  conveyance  are  simultaneous  acts,  and  should  be  done 
interchangeably.  i]i) 

Delivery  of  deeds,  etc. — There  should  be  a  direction  for  the 
delivery  up  of  deeds,  writings,  etc.,  pertaining  to  the  title  of 
the  estate.  {V) 

No.  1^5.     Decretal  order  for  a  reference  as  to  the  title  of  a 

vendor,  etc. 

{Cajption,  and  title  of  cause  as  in  No.  79,  ante,  jMge  198.) 

This  cause  coming  on  to  be  heard  upon  the  pleadings  filed 
and  proofs  taken  therein,  and  the  said  pleadings  and  proofs 
having  been  read,  and  the  counsel  for  the  respective  parties 
having  been  heard,  and  in  consideration  of  the  premises,  it  is 
ordered,  that  this  cause  be  referred  to  the  master  in  chancery 
of  this  court,  to  inquire  whether  a  good  title  can  be  made  to 
the  premises  comj)rised  in  the  agreement  between  the  parties 
to  this  cause,  mentioned  in  the  pleadings  therein  ;  and  that  he 
state  his  opinion  thereon  to  the  court.  And  in  case  he  shall  be 
of  opinion  that  a  good  title  can  be  made,  it  is  ordered  that  he 
do  inquire  and  state  when  it  was  first  shown  that  a  good  title 
could  be  made.  And  that  the  said  master  do  inquire  and 
report  as  to  the  quantity  of  land  agreed  to  be  conveyed  by  the 
complainant ;  and  that  he  take  an  account  of  the  payments 
made  upon  such  agreement,  by  the  defendant ;  and  that  he 
ascertain  and  report  the  balance  now  due  from  him  upon  the 
eaid  agreement. 

And  for  the  better  discovery  of  the  matters  aforesaid,  the 
parties  are  to  produce  before  the  said  master,  upon  oath,  all 

ij)  Id. ;  Gibson  vs.  Clarke,  2  V.  &  B.  103  ;  Bnlij  vs.  Osborne,  1  Mer.  382; 
Birch  vs.  Haynes,  2  Mer.  444;  see  Jennings  va.  Hopton,  1  Mad.  211 ;  Hyde 
vs.  WrougJiton,  3  Mad.  279  ;  Lubin  vs.  Lightbody,  8  Price,  600 ;  Anon.  3  Mad. 
495. 

{k)  Margravine  of  Auspach  vs.  Noel,  1  Mad.  316 ;  Urmston  vs.  Singleton 
cited  in  Seaton  on  Decrees,  214;  Corhus  vs.  Teed,  69  111.  205. 

(0     Id.  lb.;  McNamara  vs.  Williams,  6  Ves.  144. 


336  BILLS  FOR  SPECIFIC  PERFORMANCE. 

Forms  of  Decrees. 

deeds,  books,  papers,  and  writings,  in  their  custody  or  power, 
relating  thereto ;  and  are  to  be  examined  upon  interrogatories 
as  the  said  master  shall  direct ;  and  to  take  snch  further  proof 
as  either  party  may  produce  before  him  in  relation  tO  the  sev- 
eral matters  mentioned,  and  report  the  same  to  the  court.  And 
this  court  reserves  the  consideration  of  all  further  directions, 
and  of  the  costs  of  this  suit,  until  after  the  said  master  shall 
have  made  his  report.  And  either  of  said  parties  are  to  be  at 
liberty  to  apply  to  the  court  as  occasion  may  require. 

No.  1^6.     Interlocutory  decree  for  an  account. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  coming  on  to  be  heard  upon  the  pleadings  filed 
and  the  proofs  taken  therein,  and  the  said  pleadings  and  proofs 
having  been  read,  and  the  counsel  for  the  respective  parties 
having  been  heard,  and  the  court  being  fully  advised  in  the 
premises,  and  on  consideration  thereof,  doth  order,  adjudge  and 
decree,  that  this  cause  be  referred  to  the  master  in  chancery  of 
this  court  to  take  a  mutual  account  of  all  dealings  and  transac- 
tions between  the  complainant  and  defendant  in  this  cause,  for 
the  better  clearing  of  which  account  the  parties  are  directed  to 
produce  before  the  said  master,  upon  oath,  all  deeds,  books, 
papers,  and  writings  in  their  custody  or  power,  relating  there- 
to, and  are  to  be  examined  upon  interrogatories  as  the  said 
master  shall  direct ;  who,  in  taking  the  said  account,  is  to  make 
unto  the  parties  all  just  allowances ;  and  what,  upon  the  bal- 
ance of  the  said  account,  shall  appear  to  be  due  from  either 
party  to  the  other,  is  to  be  paid  as  the  said  master  shall  direct. 
And  this  court  reserves  the  consideration  of  the  costs  of  this 
suit,  and  of  all  other  directions,  until  after  the  said  master 
shall  have  made  his  report ;  when  either  party  is  to  be  at  liberty 
to  apply  to  the  court,  as  occasion  shall  require. 

No.  127.     Final  decree  for  a  specific  performance  of  a/n, 
agreement. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  coming  on  to  be  heard  for  further  directions  on 
the  report  of  the  master  in  chancery,  to  whom  the  same  stood 
referred,  and  the  said  report,  together  with  the  pleadings  and 
proofs,  having  been  read,  and  the  counsel  for  the  parties 
respectively  having  been  heard,  and  the  court  being  fully 
advised  in  the  premises,  and  it  appearing  to  the  court  that  a 


BILLS  FOR  SPECIFIC  PERFORMANCE.  337 

Form  of  Decree. 

good  title  can  be  made  by  the  complainant  to  tlie  premises 
comprised  in  the  agreement  between  the  parties  to  this  cause 

mentioned  in  the  pleadings  therein,  and  dated  the day  of 

• ,  18 — ;  it  is  therefore  ordered,  adjudged  and  decreed,  and 

this  court  does  order,  adjudge  and  decree,  that  the  said  agree- 
ment so  made  and  entered  into  between  the  complainant  and 
defendant,  and  duly  proved  in  this  cause,  be  specifically  per- 
formed. And  it  is  further  ordered,  adjudged  and  decreed, 
that  the  complainant  execute  and  deliver  to  the  defendant  a 
proper  and  sufficient  conveyance  in  fee  of  the  premises  de- 
scribed in  the  same  agreement  between  the  parties,  and  par- 
ticularly described  therein,  as  follows,  to  wit :  {Here  insert 
descrvption  hy  metes  and  hounds,)  to  be  approved  by  the 
master  in  chancery  of  this  court,  in  case  the  parties  differ 
about  the  same.  And  it  is  further  ordered,  adjudged  and 
decreed,  that  the  defendant,  upon  the  tender  or  delivery  to 
him  of  such  conveyance,  do  pay  unto  the  complainant  the  sum 

of dollars,  the  balance  of  the  purchase  money  of  said 

premises,  reported  by  the  said  master  in  chancery  to  be  still 

due,-  with  interest  thereon  at  the  rate  of per  cent,  from 

the  date  of  the  said  master's  report.  And  it  is  further  ordered, 
adjudged  and  decreed  that  the  defendant  pay  to  the  complain- 
ant the  costs  of  this  suit,  to  be  taxed.  And  it  is  further 
ordered,  adjudged   and   decreed,  that  the   complainant   have 

execution   against   the   defendant   for  the  said  sum  of  

dollars,  the  balance  of  said  purchase  money  reported  by  the 
master  to  be  due,  with  interest  from  the  date  of  his  report, 
and  for  the  costs,  to  be  taxed  as  aforesaid,  according  to  the 
course  and  practice  of  the  court.  And  either  of  the  parties 
is  to  be  at  liberty  to  apply  to  this  court  as  occasion  may 
require. 

22 


CHAPTEE   XXYl. 

BILLS  RELATING  TO  PARTNERSHIP  MATTERS. 

Section  1.  Where  a  Dissolution  will  be  Decreed 

2.  Account  Between  Partners. 

3.  Appointment  op  a  Receiver. 

4.  Forms  of  Bills. 

5.  Forms  of  Decrees  and  Orders. 


SECTION  I. 
WHERE    A    DISSOLUTION    WILL    BE    DECREED. 

Where  a  partnership  is  formed  for  a  definite  term,  neither 
partner  can  file  a  bill  for  dissolution  of  the  partnership,  or  for 
the  appointment  of  a  receiver,  before  the  expiration  of  the  time 
limited,  merely  on  the  ground  that  he  is  dissatisfied,  or  that 
the  partners  quarrel,  {a) 

In  matters  of  difficulty  or  controversy  between  partners,  a 
resort  to  a  court  of  equity  is  most  usual  and  most  convenient 
for  the  adjudication  and  settlement  of  the  same,  (b)  And  where 
a  party  is  a  member  of  two  difii'erent  firms,  chancery  will  adjust 
matters  of  difference  which  would  otherwise  be  settled  at 
law.  (c) 

The  courts  of  common  law  have  no  power  whatever  of  de- 
creeing or  causing  a  dissolution  of  a  partnership,  {d)  In  some 
cases,  in  which  courts  of  equity  would  make  such  a  decree,  as 
where  a  partnership  was  formed  through  fraud,  courts  of  law 
might  apply  the  principle,  that  a  contract  so  vitiated  never  had 
force,  and  on  this  ground  declare  it  null,  and  avoid  the  partner- 

(a)    Henn  \s.Walsli,  2  Edw.  Cli.  129 ;  Loomis  vs.  McEenzie,  31  Iowa,  425. 
(&)    Bracken  vs.  Kennedy,  3  Scam.  559  ;  Strong  vs.  Claicsoji,  5  Gilm.  346. 

(c)  Haven  vs.  Wakefield,  39  111.  509. 

(d)  Parson  on  Part.  457  ;  Story  on  Part.  §  284  ;  1  Story's  Eq.  Jur.  §  673  ; 
Stone  vs.  Fouse,  3  Cal.  294 ;  Nugent  vs.  Locke,  4  Cal.  320 ;  WUson  vs.  Lv^ssen, 
6  Cal.  116  ;  Barnstead  vs.  Empire  Mining  Co.  5  Cal.  299. 


BILLS   KELATING   TO    PARTNERSHIPS.         339 

Where  a  Dissolution  will  be  Decreed. 

sliip.  But  courts  of  equity  have  full  power  over  this  matter ; 
and  upon  a  bill  iiled  by  any  partner,  alleging  a  sufficient  cause, 
and  upon  proper  evidence,  if  the  facts  are  not  admitted,  the 
court  will  decree  a  dissolution  of  the  partnership,  (e) 

Where  the  duration  of  a  partnership  is  fixed,  it  requires 
something  more  than  the  mere  will  of  a  party  to  dissolve  it 
within  the  term ;  but  only  a  little  more  is  needed,  and  a  disso- 
lution will  be  granted  where  dissension  prevents  all  hope  of 
advantage.  (/") 

Where  one  partner  got  possession  of  the  entire  proceeds  of 
the  year's  operation,  without  the  consent  of  his  copartner,  (there 
being  nothing  in  the  copartnership  agreement  authorizing  him 
to  do  so,)  and  assumed  the  exclusive  control  of  the  whole  busi- 
ness, it  was  held  to  be  such  a  breach  of  faith  as  to  authorize  a 
decree  for  a  dissolution  of  the  partnership,  {g) 

A  decree  for  a  dissolution  will  be  warranted,  if  it  is  impossi- 
ble that  the  partnership  should  be  beneficially  continued ; 
namely,  if  the  principles  on  which  the  scheme  is  based  is  found, 
on  examination,  to  be  erroneous  and  impracticable ;  (A)  or  where 
the  partnership  is  formed  to  efiect  a  particular  object,  which 
is  found  to  be  impracticable,  and  wholly  fails;  (*)  or  where  the 
circumstances  have  so  changed  as  to  render  it  impossible  to  cari'y 
on  the  partnership  without  injury  to  all  the  partners ;  {j )  or 
where  the  object  of  a  partnership  is  destroyed,  as  a  steamboat.  (16) 

{e)  Parson  on  Part.  457  ;  Baxter  v&.West,  1  Drewry  &  Sm.  173  ;  Dumon, 
\s.RuepprecM,  38  Ala.  175  ;  Mealier  \s.Cox,  37  Ala.  201 ;  Harper  vs.  Lamp 
ing,  33  Cal.  641 ;  Hamilton  vs.  Stokes,  4  Price,  161 ;  Oldaker  vs.  Lavender, 
6  Sim.  239 ;  Oreen  vs.  Barrett,  1  Sim.  45 ;  Jones  vs.  Yates,  9  B.  &  C.  532 ; 
Colt  vs.  Wollaston,  2  P.  Wms.  154 ;  Fogg  &  VandersUse  vs.  Johnston,  27  Ala, 
432. 

(/)  Bisliop  vs.  Breckless,  1  Hoff.  Ch.  R.  534  ;  Meaher  vs.  Cox,  37  Ala.  201 

{g)  Kennedy  vs.  Kennedy,  3  Dana,  239  ;  Oowan  vs.  Jeffries,  2  Ashm.  296 
Maude  vs.  Bodes,  4  Dana,  144 ;  Story  vs.  Moon,  8  Dana,  331 ;  Garretso?i  vs. 
Weaver,  3  Edw.  Ch.  385. 

(A)  Beaumont  vs.  Meredith,  3  Ves.  &  B.  180 ;  Cloughve.  Radcliffe,  1  DeQex 
&S.  164. 

(t)    Nockells  vs.  Crosby,  3  B.  &  C.  814;  5  Dowl.  &  R.  751. 

{j)   Harrison  vs.  Tennant,  21  Beav.  482. 

(A)    Claiborne  vs.  Creditors,  18  La.  An.  501. 


340         BILLS   RELATING  TO   PARTNEESHIPS. 

Account  between  Partners. 

Bad  tempei',  overbearing  and  oppressive  conduct,  quarrel- 
ing, indolence  and  inattention,  intemperance  or  bad  habits 
and  disgraceful  conduct,  wild  speculations,  gross  extravagance, 
absenting  himself  from  his  business  or  entering  into  other 
business  engagements  inconsistent  with  his  duty  to  his  partners, 
or  any  conduct  which  brings  disgrace  upon  the  firm  or  impairs 
their  credit,  {I)  are  all  causes  which  may  be  sufficient,  if  their 
degree  be  sufficient,  and  otherwise  not.  (m) 


SECTION  II. 
ACCOUNT   BETWEEN    PARTNERS. 

Whenever  there  is  a  dissolution  of  a  partnership,  for  any 
cause,  it  would  seem  that  there  must  be  an  account,  if  it  is 
demanded  by  any  party  in  interest,  (n) 

The  taking  of  an  account  is  a  frequent  preliminary  to  any 
further  action  by  a  court  of  equity ;  because  by  this  means  alone 
can  the  court  ascertain  the  true  relation  of  the  parties  as  to  their 
rights  and  obligations,  (o) 

An  account  and  a  dissolution  seem  to  be  so  clearly  connect- 
ed that  an  account  is  seldom  granted  unless  a  dissolution  is  alsa 

(I)  Norway  vs.  Bowe,  19  Ves.  148 ;  Waters  vs.  Taylor,  2  Ves.  &  B.  304 ; 
Howell  vs.  Harvey,  5  Ark.  278 ;  Master  vs.  Kirton,  3  Ves.  74 ;  Wilson  vs. 
Greenwood,  1  Swanst.  481  ;  Blakeney  vs.  Dufour,  15  Beav.  40  ;  Hall  vs.  HaU, 
12  Id.  414,  and  note  to  419 ;  Williamson  vs.  Wilson,  1  Bland,  418  ;  Fogg  & 
VandersUse  vs.  Johnston,  27  Ala.  432  ;  Durbin  vs.  Barher,  14  Ohio,  311. 

(w)  Parson  on  Part.  459. 

{n)  Parson  on  Part.  511 ;  Adams,  Eq.  239,  et  seq. ;  Collyer  on  Part.  §  298 ; 
1  Story's  Eq.  Jur.  §  671 ;  Forman  vs.  Hanfray,  2  Ves.  &  B.  329  ;  Harrison 
vs.  Armitage,  4  Mad.  143  ;  Russell  vs.  Loscomhe,^  Sim.  8 ;  KnowlesYs.  Haugh- 
ton,  11  Ves.  168  ;  Waters  vs.  Taylor,  15  Ves.  15 ;  Ex  parte  Broadbent,  1  Mont. 
&  A.  635  ;  see  Hayes  vs.  Reese,  34  Barb.  R.  151 ;  Vermillian  vs.  Bailey,  27  111. 
230;  Pope  vs.  Salsman,  S5  Mo.  362. 

(o)  Baird  vs.  Baird,  1  Dev.  &  Bat.  524 ;  McRae  vs.  McEimie,  2  Dev.  & 
Bat.  232 ;  Caniblat  vs.  Tapery,  2  La.  An.  10 ;  Kennedy  vs.  Kennedy,  3  Dana, 
240. 


BILLS   EELATING   TO   PARTNEESHIPS.         341 

Account  between  Partners  —  Appointment  of  a  Receiver. 

asked  for;  {p)  but  this  cannot  be  deemed  a  rule  of  equity,  {g) 
although  in  the  great  majority  of  cases,  wliere  the  relations 
between  the  partners  are  such,  that  one  of  them  can  obtain  an 
account  only  through  the  interposition  of  a  court,  a  dissolution 
is  and  should  be  asked  for.  (r) 

On  the  filing  of  a  bill  in  chancery  for  the  settlement  of  part- 
nership accounts,  the  parties  cannot  introduce  their  individual 
accounts  into  the  statement,  [s) 

Equity  will  recognize  and  protect  debts  due  from  the  firm  to 
an  individual  member,  or  from  a  member  to  the  firm. 

The  proper  remedy  for  the  assignee  of  the  rights  of  a  part- 
ner, is  a  bill  for  the  settlement  of  the  partnership  accounts,  to 
whicli  all  the  partners  must  be  made  defendants,  {t) 


SECTION  III. 
APPOINTMENT    OF    A   KECEIVEE. 

"Where  either  partner  has  a  right  to  dissolve  the  partnership, 
and  the  copartnership  articles  do  not  provide  for  the  settlement 
of  the  concern,  it  is  of  course  for  a  receiver  to  be  appointed  by 
the  court,  upon  a  bill  for  that  purpose;  [v)  and  the  receiver 
will  be  directed  to  carry  on  the  business,  until  a  sale  of  the 
partnership  property  can  be  effected,  {v) 

Where  a  bill  is  filed  seeking  a  dissolution  of  a  partnei'ship, 
and  it  satisfactorily  appears  that  the  complainant  will  be  enti- 

{p)  Forman  vs.  Hanfray,  2  Ves.  &  B.  329 ;  see  Loscombe  vs.  Russell,  4 
Sim.  8  ;  Knowles  vs.  Haugliton,  11  Ves.  168  ;  Waters  vs.  Taylor,  15  Ves.  15 ; 
Wahoortn  vs.  Holt,  4  Mylne  &  Craig,  619,  635. 

iq)  lUchardson  vs.  Hastings,  7  Beav.  301  ;  Fairthorne  \s.W(ston,  3  Hare, 
387 ;  Miles  vs.  Tlwmas,  9  Sim.  609  ;  Goodman  vs.  Whiteomb,  1  Jac.  &  W.  593. 

(r)  Loscombe  vs.  Bussell,  4  Sim.  8;  Waters  vs.  Taylor,  15  Ves.  10;  For- 
man vs.  Hanfray,  2  Ves.  &  B.  329  ;  Ghapma.n  vs.  Beach,  2  Jac.  &  W.  594; 
Pigott  vs.  Bagley,  McClel.  &  Y.  569  ;  Krebell  vs.  White,  2  Younge  &  C.  15  ; 
Parson  on  Part.  511-512. 

(s)     Hanks  vs.  Baber,  53  111.  292 ;  see  Bracken  vs.  Kennedy,  3  Scam.  559. 

if)    Bank  vs.  Carrollton  Railroad,  11  Wallace,  624. 

(m)  Law  vs.  Ford,  2  Paige,  Ch.  R.  310 ;  Oarretson  vs.  Weaver,  3  Edw.  Cli. 
885 ;  Sloan  vs.  Moore,  37  Pa.  St.  R.  217. 

{v)    Marten  vs.  Van  Schaick,  4  Paige,  Ch.  R.  479 ;  High  on  Receivers,  §  481. 


342         BILLS   KELATING   TO   PARTNERSHIPS. 

Receiver  —  Wlien  Appointed  —  Form  of  Bill. 

tied  to  a  decree  for  the  dissolution,  a  receiver  will  be  appointed 
as  a  matter  of  course,  the  obvious  reason  being  that  the  same 
causes  which  would  justify  a  decree  for  dissolution  would  also 
justify  the  appointment  of  a  receiver.  (-?/?) 

WTien  appointed. — Where  it  appeared  that  a  copartnership 
was  insolvent,  and  that  the  complainants,  who  were  members, 
were  excluded  from  their  full  share  in  the  management  of  the 
concern,  and  that  the  defendant,  who  M^as  the  acting  partner, 
neglected  to  keep  proper  books  of  account,  and  to  keep  them 
open  for  the  inspeqtion  of  the  complainants,  who  were  refused 
access  to  them,  the  court,  on  motion,  appointed  a  receiver  before 
answer  and  final  decree.  (») 

As  a  general  rule,  a  receiver  will  not  be  appointed  without 
notice  to  those  interested  ;  but  where  irreparable  injury  would 
arise  from  delay,  a  receiver  will  be  appointed  without  notice, 
leaving  the  other  party  the  right  to  apply  to  have  the  order 
superseded  on  cause  shown.  (?/) 

For  rules  governing  the  appointment  of  a  receiver,  in  a  suit 
between  partners,  see  Kerr  on  Receivers,  81-102 ;  High  on 
Receivers,  §  472-552. 

SECTION  IV. 
FORMS    OF    BILLS. 

JVo.  1^8.    Bill  for  a  dissolution  of  a  partnerships  and  for  an 

injunction. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your  * 
honor,  that  on,  etc.,  your  orator  entered  into  an  agreement 
with  one  C.  D.  and  E.  F.,  of  the  same  place,  the  defendants 
hereinafter  named,  to  form  a  copartnership  with  them  in  the 

■{w)  Birdsall  vs.  Golie,  2  Stockt.  Cli.  R.  65  ;  Seigliortner  vs.  Weissenhorn,  5  , 
C.  E.  Green,  177;  Dunnvs.McNaugU,  38  Geo.  179;  Eifby  vs.  IngersoU, 
Harring.  Ch.  R.  18 ;  Marten  va.  Van  Scliaick,  4  Paige,  Ch.  479. 

{x)    Gowan  vs.  Je fries,  2  Ashm.  29G;  High  on  Receivers,  §  522-529. 

{tj)    Gowan  vs.  Jeffries,  2  Ashm.  296;  Williamson  vs.  Wilson,  1  Bland,  418. 


BILLS   EELATING   TO   PAKTNEESHIPS.         343 

Form  of  Bill  for  Dissolution. 

business  of  auctioneers^  which  agreement  was  reduced  to  writ- 
ing and  signed  by  your  orator  and  the  defendants,  and  was  in 
the  words  and  figures  or  to  the  purport  and  effect  following, 
that  is  to  say :  \llere  set  out  the  agreement  verbatim,)  as  by 
the  said  agreement,  ready  to  be  produced  in  court,  will  appear. 

And  your  orator  further  represents,  that  the  said  copartner- 
ship business  was  entered  upon  and  has  ever  since  continued 
to  be  carried'  on  by  your  orator  and  the  defendants  in  pursu- 
ance of  and  under  the  said  agreement,  no  other  articles  or 
instrument  having  ever  been  prepared  and  executed  between 
them. 

Your  orator  further  represents,  that  having  much  reason  to 
be  dissatisfied  with  the  conduct  of  the  said  C.  D.,  and  being 
desirous,  therefore,  to  dissolve  the  said  partnership,  your  orator 

on  or  about caused  a  notice  in  writing  signed  by  your  orator 

to  be  delivered  to  the  said  C.  D.  and  E.  F.  in  the  words  and 
figures  or  the  purport  and  effect  following,  that  is  to  say  : 
{Here  set  out  the  notice,  if  one  was  given  /)  as  in  and  by  such 
written  notice,  now  in  the  custody  or  power  of  the  defendants 
or  one  of  them,  when  produced,  will  appear. 

Your  orator  further  represents,  that  the  said  C.  D.  has  from 
time  to  time  since  the  commencement  of  the  said  partnership, 
applied  to  his  own  use  from  the  receipts  and  profits  of  the  said 
business  very  large  sums  of  money,  greatly  exceeding  the  pro- 
portion thereof  to  which  he  was  entitled,  and  in  order  to  con- 
ceal the  same  the  said  C  D.,  who  has  always  had  the  manage- 
ment of  the  said  copartnership  books,  has  never  once  balanced 
the  said  books.  And  your  orator  further  represents,  that 
having  in  the  beginning  of  the  year  18  — ,  discovered  that  the 
said  C.  D.  was  greatly  indebted  to  the  said  copartnership,  by 
reason  of  his  application  of  the  partnership  moneys  to  his  own 
use,  your  orator,  in  order  to  form  some  check  upon  the  conduct 
of  the  said  C.  D.,  requested  that  he  would  pay  all  partnership 
moneys  which  were  received  into  their  bankers,  and  would  draw 
for  such  sums  as  he  had  occasion  for,  but  the  said  C.  D.  has 
wholly  disregarded  such  request,  and  has  continued  to  apply 
the  partnership  moneys  received  by  him  to  his  own  use,  with- 
out paying  the  same  in  to  the  bankers,  and  has  also  taken  to  his 
own  use  money  received  by  the  clerks,  and  has  by  such  means 
greatly  increased  his  debt  to  the  partnership,  without  affording 
to  your  orator  and  the  said  E.  F.  any  adequate  means  of  ascer- 
taining the  true  state  of  his  accounts. 

Your  orator  further  represents,  that  he  has,  from  time  to 
time,  applied  to  the  said  C.  D.  and  requested  him  to  come  to  a 
fall  and  fair  account  in  respect  to  the  said  copartnership  trans- 


344         BILLS   RELATING   TO   PAETNERSHIPS. 

Form  of  Bill  for  Dissolution. 

actions,  with  which  just  and  reasonable  request  your  orator 
well  hoped  that  the  said  C.  D.  M'ould  have  complied,  as  in 
justice  and  equity  he  ought  to  have  done.  But  now  so  it  is, 
may  it  please  your  honor,  the  said  C.  D.  absolutely  refuses  so  to 
do ;  and  he  at  times  pretends  that  he  has  not  received  and 
applied  to  his  own  use  more  than  is  his  due  proportion  of  tlie 
partnership  profits.  Whereas  your  orator  charges  the  contrary 
thereof  to  be  the  truth,  and  so  it  would  appear  if  the  said  C.  D. 
would  set  forth  a  full  and  true  account  of  all  and  every  his 
receipts  and  payments  in  respect  of  the  said  partnersliip  transac- 
tions, and  of  the  gains  and  profits  which  have  been  made  in  each 
year  since  the  commencement  of  the  said  partnership.  And 
your  orator  charges  that  tlie  said  C.  D.  has  in  tact  received  the 

sum  of dollars  and  upwards  beyond  his  due  proportion  of 

the  partnership  profits,  and  that  he  is  nevertheless  proceeding 
to  collect  in  the  partnership  debts  and  moneys,  whereby  the 
balance  due  from  him  will  be  increased,  to  the  great  loss  and 
injury  of  your  orator  and  the  said  E.  F.  And  your  orator 
charges  that  tlie  said  C.  D.  ought,  therefore,  to  be  restrained  by 
the  order  and  injunction  of  tins  honorable  court  from  collecting 
^nd  receiving  any  of  the  said  partnership  debts  and  moneys. 

And  your  orator  further  represents  unto  your  honor,  that  the 
eaid  E.  F.  refuses  to  join  with  your  orator  in  this  suit.  ( Ij- 
deemed  necessary,  add  interrogatories,  see  ante,  page  72.) 

Forasmuch,  therefore,  as  your  orator  is  without  adequate 
remedy  in  the  premises,  except  in  a  court  of  equity ;  and  to 
the  end  that  the  said  C.  D.  and  E.  F.,  who  are  made  parties 
defendant  to  this  bill,  may  be  required  to  make  full  and  direct 
answer  to  the  same,  ( If  the  oath  is  to  he  waived,  say,  ''•But' 
not  under  oath,  the  ansioer  under  oath  heing  herehy  waived,'^) 
that  the  said  copartnership  may  be  declared  void,  and  that  an 
account  may  be  taken  of  all  and  every  the  said  copartnership 
dealings  and  transactions  from  the  time  of  the  commencement 
thereof;  and  also  an  account  of  the  moneys  received  and  paid 
by  your  orator  and  the  defendants  respectively  in  regard  there- 
to. And  that  the  defendants  may  be  decreed  to  pay  to  your 
orator  what,  if  anything,  shall  upon  the  taking  of  the  said 
accounts  appear  to  be  due  to  him,  your  orator  being  ready 
and  willing,  and  hereby  ofi*ering  to  pay  to  the  defendants  or 
either  of  them  what,  if  anything,  shall  upon  the  taking  of  the 
eaid  accounts,  appear  to  be  due  to  them  or  either  of  them  from 
your  orator.  And  that  in  the  meantime  the  said  C.  D.  may  be 
restrained  by  the  order  and  injunction  of  this  honorable  court 
from  collecting  or  receiving  the  partnersliip  debts  or  other 
money.     And  that  your  oi'atorni'iy  have  such  other  and  further 


BILLS   RELATING   TO   PARTNERSHIPS.         345 

Bill  for  an  Account  —  Affidavit  for  Injunction. 

relief  in  the  premises  as  equity  may  require  and  to  your  honor 
shall  seem  meet. 

May  it  please  your  lionor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sherili'  of  the  said  county  of ,  com- 

mandiny-  him  that  he  summon  the  defendants,  C.  D.  and  E.  F., 
to  appear  before  the  said   court,  on    tlie  lirst  day  of  tlie  ne.xt 

— - —  term  tliereof,  to  be  held  at  the  court  house  in ,  in  the 

county  aforesaid,  then  and  there  to  answer  this  bill,  etc. 

And  may  it  please  your  honor  to  grant  unto  your  orator  tlie 
people's  writ  of  injunction,  to  be  directed  to  the  said  C.  D., 
restraining  him,  his  agents  and  attorneys,  from  collecting  or 
receiving  any  of  the  debts  due  and  owing  to  the  said  firm,  and 
from  using  and  applying  any  of  the  copartnership  funds  to  his 
own  use  until  the  further  order  of  said  coui't. 

Solicitor  for  Complainant.  A.  B. 

{If  an  injunction  is  desired,  add  affidavit,  asfollov^s  :) 

No.  129.     Affidavit  to  a  lill  to  obtain  an  injunction. 

State  of  ) 

V  ss. 


County  of  — 

On  this day  of ,  18 — ,  before, me  personally  ap- 
peared the  above-named  A.  B.  and  made  oath  that  he  has 
heard  read  the  above  bill  subscribed  by  him,  and  knows  the 
contents  thereof,  and  that  the  same  is  true,  of  his  own  knowl- 
edge, except  as  to  the  matters  which  are  therein  stated  to  be 
on  his  information  or  belief,  and  that  as  to  those  matters  he 
believes  it  to  be  true.  ^  (ji^^j,  ^f  ^;^^ ^.^^^^,^_ 

No.  130.     Bill  for  an  account  of  partner shi])  dealings,  and 
an  injunction,  etc. 

To  the  Honorable ,  Judge  of  the  — — ■  Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Tour  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto 
your  honor,  that  on,  etc.,  your  orator  and  0.  D.,  of  the  same 
place,  entered  into  a  general  copartnership  together  for  the  pur- 
pose of  carrying  on  a  general  loholesale  and  retail  dry  goods 
business  at,  etc.,  the  same  to  be  carried  on  under  the  linn 
name  and  style  of  B.  &  D.  ;  that  your  orator  engaged  to  and 

did  bring  into  said  business  the  sum  of dollars,  and  was 

to  receive  two-thirds  of  the  profits,  and,  in  the  same  pi-opor- 
tion,  to  share  the  losses  of  said  business;  and  that  the  said 
C.  D.  engaged  to  and  did  bring  into  the  said  business  the  sum 


346         BILLS   KELATING   TO   PAKTNEKSHIPS. 
Form  of  Bill  for  Account,  etc. 

of dollars,  and  was  to  receive  <yiie-i]drd  of  the  profits, 

and  was  to  share  the  losses  of  s.iid  business  in  the  same 
proportion ;  that  the  said  copartnership  business  was  com- 
menced on,  etc,  and  was  continued  from  that  date  until,  etc., 
when  the  same  was  dissolved  by  mutual  consent ;  that  during 
the  continuation  of  said  copartnership  business  a  large  amount 
of  goods  were  sold  by  the  said  firm  to  various  parties  on  a 
credit,  and  the  said  business  remains  unsettled. 

Your  orator  further  represents  unto  your  honor  that  no 
settlement  of  said  copartnership  business  has  ever  been  made 
between  your  orator  and  the  said  CD.;  that  since  the  expira- 
tion of  the  term  of  the  said  partnership,  your  orator  has 
repeatedly  applied  to  the  said  C.  D.  to  come  to  a  final  settle- 
ment and  adjustment  with  respect  thereto.  And  your  orator 
well  hoped  that  the  said  C.  D.  would  have  complied  with 
your  orator's  reasonable  request  in  that  behalf,  as  in  equity 
and  justice  he  ought  to  have  done.  But  the  said  C.  D.  de- 
ilined,  and  absolutely  refuses,  so  to  do. 

Tour  orator  further  represents  that  the  said  C.  D.  has  taken 
possession  of  the  partnership  books  of  the  said  firm,  and  has 
collected  a  large  amount  of  the  accounts  due  and  owing  to  the 
same,  and  has  refused  to  permit  your  orator  to  see  and  inspect 
said  books  of  account,  and  wholly  refuses  to  render  to  your 
orator  any  account  of  the  copartnership  moneys  received  by 
him,  and  to  apply  the  same  to  the  payment  of  the  debts  of  the 
said  firm. 

Your  orator  further  represents  that  upon  a  just  and  true 
settlement  of  the  accounts  of  the  said  partnership  business,  it 
would  appear  that  there  is  a  large  balance  due  from  the  said 
C.  D.  to  your  orator,  in  respect  of  the  said  business. 

Your  orator  further  rej)resents,  that  the  said  C.  D.  is  using 
the  funds  of  the  said  copartnership  in  rash  speculations  on  his 
own  account,  and  is  thereby  in  danger  of  drifting  into  insolv- 
ency ;  and  your  orator  fears,  and  charges  that  he  is  in  danger 
of  losing  the  amount  so  due  him  from  the  said  C.  D.  in  respect 
to  the  said  copartnership  dealings  and  transactions.  By  reason 
whereof  the  said  C.  D.  ought  to  be  enjoined  and  restrained  by 
the  injunction  of  this  honorable  court  from  further  collecting 
the  said  copartnership  accounts,  and  from  using  and  further 
applying  the  funds  of  said  firm  to  his  own  use ;  and  that  some 
suitable  person  ought  to  be  appointed  by  this  honorable  court 
to  receive  and  take  charge  of  the  books  of  account  of  the  said 
firm,  and  to  collect  the  accounts  due  the  same. 

Forasmuch,  therefore,  as  your  orator  is  without  adequate 
remedy  in  the  premises,  except  in  a  court  of  equity ;  and  to 


BILLS   RELATING   TO   PARTNERSHIPS.         347 

Form  of  Decree,  etc.  —  Order  Appointing  Receiver. 

the  end  that  the  said  C.  D.,  who  is  made  party  defendant  to 
this  bill,  may  be  required  to  make  full  and  direct  answer  to  tlie 
same,  hut  not  under  oath^  the  answer  under  oath  heing  hereby 
waived  j  and  fully  set  forth  a  true  and  just  account  of  all  his 
actings  and  doings  in  respect  to  said  copartnership  business 
since  the  expiration  thereof;  and  that  an  account  may  be  taken 
under  the  direction  of  this  honorable  court,  of  all -and  every 
the  said  copartnership  dealings  and  transactions,  and  that  the 
same  may  be  fully  adjusted,  and  the  respective  rights  of  your 
orator  and  the  defendant  ascertained ;  and  that  the  defendant 
may  be  decreed  to  pay  to  your  orator  what,  if  anything,  shall 
appear  upon  such  account  to  be  due  from  him  ;  your  orator 
being  ready  and  willing,  and  hereby  offers  to  pay  to  the  defend- 
ant what,  if  anything,  shall  appear  to  be  due  to  the  defendant 
from  your  orator ;  and  that  some  proper  person  may  in  the 
meantime  be  appointed  by  the  court  as  receiver,  to  take  charge 
of  the  said  partnership  books  of  account,  and  collect  whatever 
money  or  property  may  belong  or  be  due  to  the  said  firm ; 
and  that  your  orator  may  have  such  other  and  further  relief  in 
the  premises  as  equity  may  require  and  to  your  honor  shall 
seem  meet. 

May  it  please,  etc.  {Add 2^rayer  for  summons  and  injunc- 
tion as  in  the  last  jprecedent^  No.  128,  and  affidavit,  No.  129, 
ante,  page  SJ^S.) 


SECTION  V. 
FORMS    OF   DECREES    AJSTD    ORDERS. 

J7b.  131.     Order  appointing  a  receiver  in  a  suit  between 
partners. 

{Proceed  as  in  No.  81,  ante,  page  202,  to  the  asterisk  *,  a/nd 
continue:)  It  is  ordered  that  E,  F.,  of,  etc.,  be,  and  he  is 
hereby  appointed  receiver  to  receive  the  outstanding  debts 
and  effects  of  the  late  partnership  of  A.  B.  and  C.  D.,  in  the 
pleadings  in  this  cause  mentioned ;  that  the  said  E.  F.  enter 

into  a  bond  in  the  penal  sum  of dollars,  with  security,  to 

be  approved  by  the  master  in  chancery  of  this  court,  con- 
ditioned for  the  faithful  performance  of  his  duties  as  such 
receiver,  and  that  he  will  be  answerable  for  what  he  shall 
receive  of  such  outstanding  debts  and  effects,  and  will  pay  the 
same,  as  this  court  shall,  from  time  to  time  direct. 

And  it  is  further  ordered  that  the  complainant  and  defend- 
ant do  deliver  over  to  the  said  E.  F.,  as  such  receiver,  all  books 


348         BILLS   EELATING  TO   PARTNEESHIPS. 


Decree  for  Account  —  Decree  for  Dissolution,  etc. 

of  account,  securities  and  evidences  of  indebtedness,  and  effects 
belonging  to  tlie  said  partnership.  And  in  case  there  shall  be 
occasion  to  put  any  of  the  debts  in  suit  for  the  recovery 
thereof,  the  said  receiver  is  to  make  nse  of  the  names  of  the 
complainant  and  defendant,  or  either  of  them,  as  it  may  be- 
come necessary  for  that  purpose.  It  is  further  ordered  that 
the  said  receiver,  from  time  to  time,  make  report  to  the  court 
of  his  proceedings  in  this  behalf;  and  that  he  be  at  liberty  to 
apply  to  the  court  for  further  directions  as  he  may  deem 
necessary. 

No.  132.     Decree  for  ayi  account  of  partner  sMjp  dealings. 

{Proceed  substantially  as  in  No.  81^  ante,  jpage  W2,  to  the 
asterish  *,  and  then  proceed  as  follows:)  It  is  therefore 
ordered,  adjudged  and  decreed,  that  this  cause  be  referred  to 
the  master  in  chancery  of  this  court  to  take  an  account  of  the 
partnership  dealings  between  the  complainant  and  defendant ; 
and  for  the  better  discovery  of  the  matters  aforesaid,  the  par- 
ties hereto  respectively  are  ordered  to  produce  before  the  said 
master,  and  to  leave  with  him  until  otherwise  directed,  all 
books,  papers  and  writings  in  their  custody,  or  under  their 
control,  relating  thereto ;  and  are  to  be  examined  upon  oath 
and  interrogatories,  as  the  said  master  shall  direct ;  and  the 
said  master  will  cause  to  come  before  him  all  such  witnesses, 
whose  testimony  he  may  deem  necessary,  and  examine  them 
UDon  oath  and  interrogatories  touching  the  said  accounts. 
And  it  is  ordered  that  what  shall  appear  to  be  due  from  either 
party  to  the  other  on  the  balance  of  the  said  account,  be 
paid  by  such  party  from  whom  such  balance  shall  be  found 

due  to  the  other,   within  after  the  i^eport  of  the  said 

master  shall  have  been  approved  and  confirmed  by  this  court. 
And  it  is  further  ordered  that  the  said  master  make  his  report 
herein  with  all  convenient  speed ;  and  that  the  said  master,  or 
either  of  said  parties,  be  at  liberty  to  apply  to  the  court  for 
further  dii'ections,  and  the  court  reserves  the  consideration  of 
costs  until  after  the  said  master  shall  have  made  his  report. 

No.  133.     Final  decree  for  a  dissolution  of  partnership.,  and 
for  an  account. 

{Caption.,  and  title  of  cause  as  in  No.  79,  RTite,page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answer  of  the  defendant  thereto,  the  replica- 
tion of  the  complainant  to  sucli  answer,  and  the  report  of  the 


BILLS   EELATING   TO   PARTNERSHIPS.         349 
Decree  for  Dissolution  and  Account. 

master  in  chancery  of  this  conrt,  to  whom  this  cause  was  here- 
tofore referred  to  take  the  proofs  of  the  matters  in  issue  in  said 
cause,  and  to  state  an  account  of  the  partnership  dealings  be- 
tween said  parties,  which  said  report  is  hereby  approved  and 
confirmed,  and  having  been  argued  by  counsel  for  the  respective 
parties ;  and  the  court  being  fully  advised  in  the  premises,  and 
on  consideration  thereof,  doth  find  :  that  the  allegations  of*  the 
said  bill  are  substantially  true  as  therein  stated ;  and  that  the 
equity  of  this  cause  is  with  the  complainant ;  and  that,  etc. 
{Here  insert  cmy  other  matter  found  hy  the  court) ;  and  that 
upon  the  statement  of  the  account  between  the  said  parties,  in 
respect  to  their  partnership  dealings,  that  there  is  now  due 

from  the  defendant  to  the  complainant  the  sum  of dollars. 

It  is  therefore  ordered^  adjudged  and  decreed,  by  the  court, 
that  the  copartnership  heretofore  existing  between  the  said 
parties  be,  and  the  same  is  hereby,  dissolved  ;  that  the  defend- 
ant pay  to  the  complainant  within days  from  this  date, 

the  said  sum  of dollars,  with  lawful  interest  thereon  from 

this  day  until  paid,  and  also  the  costs  of  this  suit  to  be  taxed 
by  the  clerk  of  this  court ;  and  in  default  of  such  payment,  that 
execution  issue  therefor. 


CHAPTER  XXYIl. 

BILLS    TO    REDEEM. 


Section  1. 

Nature  of. 

2. 

Who  may  Redeem. 

3. 

Within  What  Time  to  be  Filed. 

4. 

Parties  to. 

5. 

Terms  op  Redemption. 

6. 

Frame  of  Bill.                     • 

7. 

Decree. 

SECTION   I. 

NATURE    OF. 

it  IS  a  doctrine  of  courts  of  equity  that  a  mortgage  is  a  mere 
security  for  the  debt,  and  only  a  chattel  interest ;  and  that 
until  a  decree  of  foreclosure,  the  mortgagor  continues  the  real 
owner  of  the  fee.  The  equity  of  redemption  is  considered  to 
be  the  real  and  beneficial  estate,  tantamount  to  the  fee  at  law ; 
and  it  is  accordingly  held  to  be  descendible  by  inheritance,  de- 
visable by  will,  and  alienable  by  deed,  precisely  as  if  it  were  an 
absolute  estate  of  inheritance  at  law.  {a) 

It  is  not  essential  to  the  right  of  the  mortgagor  to  redeem  that 
he  should  do  so  within  the  time  limited  in  the  defeasance. 
There  is  no  rule  of  law  which  requires  that  a  redemption  shall 
be  made  within  the  time  limited  by  the  mortgage.  Until  fore- 
closure, it  is  a  subsisting  right,  unless  barred  by  the  lapse  of 
time.  (5) 

If  a  subsequent  purchaser  takes  his  conveyance  with  notice 
of  the  prior  mortgage,  he,  of  course,  holds  subject  to  the  mort- 
gage, but  he  or  his  grantees  have  still  the  right  to  redeem,  and 
can  only  be  deprived  of  that  right  by  a  foreclosure  of  the  mort- 

(a)  Bruere  vs.  WJiarton,  7  Sim.  483 ;  Russell  vs.  Topping,  5  McLean,  194 ; 
Russell  VH.  Ely,  2  Black,  575. 

(6)    PrescJibaker  vs.  Feaman,  32  111.  475 ;  Willetts  vs.  Burgess,  34  111  494 


BILLS   TO    REDEEM.  351 

Nature  of  —  Deed  Absolute  on  its  Face,  etc. 

gage,  or  by  its  being  barred  in  some  of  the  modes  known  to  the 
law.  (c) 

Deed  absolute  on  its  face,  when  deeined  as  a  mortgage. — A 
deed  absolute  on  its  face  will  be  deemed  as  a  mortgage,  in 
equity,  if  intended  as  a  security  for  the  payment  of , money  ;  {d) 
ind  the  intention  of  the  pai'ties  may  be  manifested  either  by  a 
written  defeasance,  executed  simultaneously  with  the  convey- 
ance, or  by  the  acts  or  parol  declarations  of  the  parties,  {e) 
i  nd  where  a  conveyance  is  in  fact  a  mortgage,  it  continues  a 
mortgage,  although  there  may  be  a  change  of  owners,  if  each 
change  is  coupled  with  notice  of  the  original  transaction,  (y) 

If  the  transaction  was  in  fact  a  loan  or  security  for  money 
owing,  although  the  conveyance  is  absolute  on  its  face,  still  it 
will  be  treated  as  a  mortgage,  but  that  fact  nnist  be  satisfac- 
torily shown.  ((/)  Where  the  evidence  of  indebtedness  is 
retained  by  the  mortgagee,  after  receiving  a  deed,  absolute  in 
terms,  of  the  mortgaged  premises,  and  the  mortgagee  gives  back 
a  lease  to  the  grantor,  and  receives  rent,  equity  will  regard  the 
deed  as  a  mortgage.  (A) 

The  statute  of  Illinois  provides  that,  "  every  deed  conveying 
real  estate,  which  shall  appear  to  have  been  intended  only  as 

(c)  Z)Mn?a^>  vs.  TFi7so;i,  32  111.  517. 

(d)  Hughes  vs.  Edwards,  9  Wheat.  489  ;  Sprigg  vs.  Bank  of  Mount 
Pleasant.  14  Pet.  201  -,8.0.1  McLean,  178,  384 ;  Walton  vs.  Crowley,  14 
Wend.  63;  Morris  ys.  Nixon,  1  How.  U.  S.  118;  Jaques  vs.  Weeks,  7  Watts, 
261  ;  Babcock  vs.  Wyman,  19  How.  U.  S.  289  ;  Cornell  vs.  Pierson,  4  Halst. 
Ch.  478  -,8.0.2  Curtis,  C.  C.  386  ;  Ohickering  vs.  Hatch,  3  Sum.  474 ;  Par- 
rington  vs.  Pierce,  38  Maine,  447  ;  Bentley  vs.  Phelps,  2  W.  &  M.  C.  C.  R. 
436 ;  Eldridge  vs.  Jenkins,  3  Story,  181  ;  Jewett  vs.  Cunard,  3  W.  &  M.  C.  C. 
R.  277  ;  Graham  vs.  8heke?i,  16  Legal  Intel.  324;  Harrison  vs.  Lemon,  S 
Blackf.  .^1  ;  8utphen  vs.  Onshman,  35  HI.  186;  BeWolfe  vs.  Strader,  26  111. 
225  ;  Bow  vs.  Chaniberlin,  5  McLean,  281. 

(e)  Belahay  vs.  McConnel,  4  Scam.  157  ;  Coates  vs.  Woodicorth,  13  111.  654  ; 
Miller  vs.  Thomas,  14  111.  428 ;  TiJlson  vs.  Moulton,  23  111.  648 ;  Bewen  vs. 
Blake,  44  111.  135  ;  Hnnter  vs.  Hatch,  45  III.  178 ;  8mith  vs.  Boyle,  46  III.  451. 

(/)  Brown  vs.  Gaffney,  28  111.  149;  S7ia/ver  vs.Woodward,  lb.  277;  Bet 
gard  vs.  McNeil,  38  111.  400. 

ig)  Taintor  vs.  Keys,  43  111.  332 ;  Bwen  vs.  Blake,  44  111.  135  ;  Parmelee 
VB.  Lawrence,  lb.  405. 

(A)   Ennor  vs.  Thompson,  46  HI.  214. 


352  BILLS   TO   REDEEM. 

Who  may  Redeem. 

a  security  in  the  nature  of  a  mortgage,  though  it  be  an  abso- 
lute conveyance  in  terms,  shall  be  considered  as  a  mort- 
gage." (i) 

This  statute  is,  howevei',  only  declaratory  in  its  effect ;  as 
such  was  the  law  before  its  passage. 


SECTION   II. 

WHO    MAT    REDEEM. 

The  equity  of  redemption  is  not  only  a  subsisting  estate  and 
interest  in  the  land  in  the  hands  of  the  heirs,  devisees,  assignees 
and  representatives,  strictly  so  called,  of  the  mortgagor ;  but 
it  also  may  be  asserted  by  any  other  persons  who  have  acquired 
any  interest  in  the  lands  mortgaged,  by  operation  of  law  or 
otherwise  in  privity  of  title,  (^j)  Such  persons  have  a  clear 
right  to  disengage  the  property  from  all  incumbrances,  in  order 
to  make  their  own  claims  beneficial  or  available.  Hence  a 
tenant  for  life,  a  tenant  by  the  courtesy,  a  tenant  in  dower, 
a  jointress,  a  reversioner,  a  remainderman,  a  judgment  creditor, 
a  junior  mortgagee,  and,  indeed,  every  other  person,  being  an 
incumbrancer,  or  having  a  legal  or  equitable  title  or  lien 
thereon,  may  insist  upon  a  redemption  of  the  mortgage,  in 
order  to  the  due  enforcement  of  their  respective  claims  and 
interests  in  the  land,  (k)  Even  a  person  claiming  under  a 
prior  or  subsequent  voluntary  conveyance,  may,  as  against  a 
mortgagee,  redeem,  (l)  When  any  such  person  does  so  redeem, 
he  becomes  substituted  to  the  rights  and  interests  of  the 
original  mortgagee  in  the  land,  (m) 

A  junior  incumbrancer  has  a  right  to  redeem  from  a  prior 

(t)  Rev.  Stat.  (1874)  713;  Rev.  Stat.  (1877)  676;  see  Heald  vs.  Wright, 
75  111.  17;  Knowles  vs.  Knowles,  86  111.  1;  Hancock  vs.  Harper.  86  111.  445. 

ij)  4  Kent's  Com.  162;  2  Story's  Eq.  Jur.  §291;  ITpJiam  ^s.  Brooks,  2 
W.  &  M.  408. 

{k)  2  Story's  Eq.  Jur.  §  1023  ;  Pardee  vs.  Van  Auken,  3  Barb.  R.  584 ; 
Kinnoul  vs.  Money,  3  Swanst.  208 ;  Dovme  vs.  Morris,  3  Hare,  394. 

(I)  2  Fonb.  Eq.  B.  3,  ch.  1,  §  8,  and  note  p  ;  2  Barb.  Ch.  Pr.  193,  194; 
DunUvp  vs.  Wilson,  32  111.  517. 

(*»)  2  Story's  Eq.  Jur.  §  1023. 


BILLS   TO   EEDEEM.  35.T 


Within  what  Time  to  be  Filed. 


mortgage  by  paying  the  amount  due  according  to  its  terms  as 
recorded,  (n) 

As  a  general  rule,  the  holder  of  the  legal  estate  under  the 
mortgagor  is  a  proper  person  to  redeem,  whether  he  holds  as 
trustee  for  others,  or  in  his  own  right  by  a  voluntary  convey- 
ance from  the  mortgagor,  (o) 

The  complainant  must  be  entitled  to  the  legal  estate  of  the 
mortgagor,  or  must  claim  a  subsisting  interest  under  him.  (j?) 

SECTION  III. 
WITHIN    WHAT    TIME    TO    BE    FILED. 

As  a  general  rule  there  can  be  no  redemption  of  a  mortgage 
after  twenty  years  from  the  time  of  the  forfeiture,  or  of  actual 
quiet  and  uninterrupted  possession ;  (§-)  unless  circumstances 
are  proved  by  the  mortgagor  showing  an  acknowledgment  of 
his  title  by  the  mortgagee ;  (r)  or  unless  the  mortgagor  has 
labored  under  some  impediment ;  and  even  in  that  case, 
according  to  Lord  Kenyon's  opinion,  there  can  be  no  redemp- 
tion after  ten  years  from  the  time  the  impediment  has  been 
removed,  (s)  But  it  was  held  in  Maryland  that  an  infant  is  to 
be  allowed  twenty  years  after  he  becomes  of  age  to  file  his  bill 
to  redeem,  (t) 

Redemption  will  not  be  allowed  before  the  time  specified  in 
a  mortgage,  even  on  tender  of  the  principal  of  the  debt,  with 
interest,  to  the  stipulated  time  of  payment,  and  costs,  (u) 

(n)  Gardner  vs.  Emerson,  40  111.  296 ;  Eolbrook  vs.  Worcester  Bank,  2 
Curtis,  244. 

{o)  Beach  vs.  Sliaw,  57  111.  17 ;  see  Strang  vs.  Allen,  4A  111.  428 ;  Roberta 
vs.  Fleming,  53  111.  196. 

(p)    Grant  vs.  Duane,  9  Johns.  591  ;  Purvis  vs.  Brown,  4  Ired.  Eq.  413. 

(g)  Whiting  vs.  White,  Coop.  4 ;  Demarest  vs.  Wynkoop,  3  Johns.  Ch, 
129  ;  Beckford  vs.  Wade,  17  Ves.  99  ;  Slee  vs.  Manhattan  Co.  1  Paige,  Ch.  48 ; 
Anon.  3  Atk.  313 ;  Moore  vs.  Cable,  1  Johns.  Ch.  385. 

(r)  Barron  vs.  Martin,  19  Ves.  327 ;  Hodle  ^rs.Healey,  Mad,  &  Geld.  181  • 
Dexter  vs.  Arnold,  3  Sum.  152. 

(s)    Beckford  vs.  Wade,  17  Ves.  99. 

{t)    Lamar  vs.  Jones,  3  Har.  &  McHen.  328 ;  2  Barb.  Ch.  Pr,  194r-195 

(tt)    Ahhe  vs.  Goodwin,  7  Conn.  377. 
33 


354  BILLS   TO   EEDEEM. 

Parties  to  —  Complaiuants. 

A  mortgagor  seeking  to  redeem  from  a  sale  of  the  premises 
by  the  mortgagee,  under  a  power  in  the  mortgage,  on  the 
alleged  ground  of  a  defective  notice  of  the  sale  and  inadequacy 
of  price,  must  file  his  bill  in  apt  and  reasonable  time ;  {v)  and 
in  such  case  the  whole  of  the  mortgage  money  must  be  ten- 
dered ;  not  merely  the  amount  of  the  sale,  (w) 


SECTION  IV. 
PABTIES    TO. 

1.  Co7nplai7iants. — If  the  bill  is  brought  by  the  mortgagoi 
against  the  mortgagee,  there  having  been  no  death  or  assign- 
ment on  either  side,  it  is,  of  course,  that  no  other  persons  need 
be  made  parties.  If  the  mortgagor  is  dead,  then  his  heir,  oi 
his  devisee,  if  the  estate  has  been  devised,  is  the  proper  party 
to  redeem,  if  it  is  a  mortgage  in  fee ;  and  if  a  mortgage  for  a 
term  of  years  only,  then  the  personal  representative  of  the 
deceased,  (x)  If  two  estates  are  mortgaged,  and  by  the  death 
of  the  mortgagor,  the  equity  of  redemption  of  the  two  estates 
is  vested  in  different  persons,  all  of  them  must  be  made  parties 
to  a  bill  to  redeem,  (y) 

If  the  bill  charges  that  a  part  of  the  mortgage,  principal  and 
interest,  has  been  paid  b}'^  the  mortgagor,  in  his  lifetime,  the 
personal  representative  of  the  mortgagor,  as  well  as  his  heir 
or  devisee,  is  a  necessary  party  to  the  account  from  what  is  due 
on  the  mortgage,  (z)  Indeed,  as  the  personal  assets  are  usually 
Jlrst  to  be  applied  in  exoneration  of  the  real  estate  mortgaged, 
it  would  seem  that  in  a  bill  by  an  heir  or  devisee  to  redeem, 
lie  might  properly  make  the  personal  representative  of  the 
mortgagor  a  party  defendant,  in  order  to  have  the  assets  so 

(«)  Hamilton  vs.  Lubukee,  51  111.  415. 

(tr)  Collins  vs.  Biggs,  14  Wallace,  491. 

{X)  2  Barb.  Cli.  Pr.  195  ;  Story's  Eq.  PI.  §  182. 

(y)  Cholmondeley  Ys.Clinton,  2  Jac.  &  W.  1,  2. 

(s)  S.  a  Id.  135  ;  2  Barb.  Ch.  Pr.  196 


BILLS   TO   REDEEM.  355 

Parties  to  —  Complainants. 

applied ;  and  thus  relieve  himself  from  the  burden  of  the 
incumbrance,  {a) 

If  a  mortgagor  has  conveyed  his  equity  of  redemption  to 
trustees,  for  the  benefit  of  his  other  creditors,  the  trustees  alone 
are  generally  the  proper  parties  to  a  bill  to  redeem,  and  not  any 
of  the  creditors  entitled  under  the  trust.  (&)  But  a  special  case 
may  exist,  in  which  such  creditors  would  be  entitled  to  redeem ; 
as,  for  example,  if  the  trustees  should  collude  with  the  mort- 
gagee, or  should  refuse  to  sue,  or  should  be  insolvent,  (c)  In 
such  a  case  the  bill  should  be  brought  in  behalf  of  all  the  cred- 
itors ;  for  a  few  could  not  redeem  for  their  own  benefit,  {d) 

Where  the  mortgagor  has  conveyed  the  estate,  subject  to  the 
mortgage,  and  the  grantee  is  to  j>ay  off  the  mortgage,  he  may 
maintain  a  suit  to  redeem,  without  making  the  mortgagor  a 
party.  But  if  the  conveyance  be  of  the  whole  real  estate, 
absolutely  free  from  incumbrances,  then  the  mortgagor  should, 
or  at  least  may,  be  made  a  party,  in  order  to  be  bound  by  the 
decree,  and  to  assist  in  taking  the  account ;  he  being  primarily 
liable  to  discharge  the  mortgage.  If  the  assignment  is  made 
to  several  persons  jointly,  all  of  them  should  be  parties  to  the 
bill  to  redeem,  {e) 

To  a  bill  brought  by  a  second  or  subsequent  mortgagee,  to 
redeem  either  one  or  all  of  the  antecedent  mortgages,  the  mort- 
gagor or  his  heir  or  other  proper  representative  in  the  realty, 
is  a  necessary  party ;  for  it  is  said  the  natural  decree  in  such  a 
case  is  that  the  second  mortgagee  shall  redeem  from  the  first 
mortgagee,  and  the  mortgagor,  or  his  representatives  in  the 
realty,  shall  redeem  from  him  or  stand  foreclosed.  And  a  court 
of  equity  in  such  case,  endeavors  to  make  a  complete  decree 
that  shall  embrace  the  whole  subject,  and  determine  upon  the 

{a)  Story's  Eq.  PI.  §  182 ;  2  Barb.  Ch.  Pr.  196 ;  Howell  vs.  Price,  1  P. 
Wms.  291 ;  Bradsliaw  vs.  Outram,  13  Ves.  234 ;  Duke  of  Cumberland  vs. 
Coddrinqton,  3  Johns.  Ch.  257. 

(6)    Coop.  Eq.  PI.  175  ;  TrougUon  vs.  Binkes,  6  Ves.  573,  575. 

(c)    Troughton  vs.  Binkes,  6  Ves.  578,  575. 

{d)   Id.  lb.  ;  2  Barb.  Ch.  Pr.  196. 

(e)  Palmer  vs.  Earl  of  Carlisle,  1  Sim.  &  Stu.  428,  425 ;  True  vs.  Haley, 
24  Maine,  297 ;  Story's  Eq.  PI.  §  188. 


356  BILLS   TO   REDEEM. 

Parties  to  —  Defendants. 

rights  of  all  the  parties  interested  in  the  estate,  {f)  But  in 
such  a  case,  it  seems,  that  the  personal  representative  of  the 
mortgagor  would  not  be  a  necessary  party,  even  though  it 
might,  perhaps,  be  competent  to  make  him  a  party,  {g) 

2.  Defendants. — In  general  terms,  it  may  be  stated,  that  all 
persons  ought  to  be  made  parties  whose  interests  or  rights  may 
be  affected  by  the  decree.  (A)  The  mortgagee  is,  of  course,  the 
only  necessary  and  proper  party  in  all  cases,  where  there  is  no 
other  outstanding  interest  under  him.  If  the  mortgage  is  in 
fee,  and  the  mortgagee  is  dead,  the  heirs  of  the  mortgagee,  or 
other  persons,  in  whom  the  legal  estate  is  vested  by  devise  or 
otherwise,  must  be  made  parties ;  because  they  have  the  legal 
title,  and  are  to  be  bound  by  the  decree.  And  the  personal 
representatives  of  the  mortgagee  must  also  be  made  parties ; 
because,  generally,  they  are  entitled  to  the  mortgage  money, 
when  paid,  as  it  is  to  be  returned  to  the  same  fund  out  of  which 
it  originally  came,  {i)  But  if  the  mortgage  is  of  a  term  of 
years,  created  by  the  owner  of  the  fee,  the  personal  represen- 
tatives of  the  mortgagee  only,  without  the  heirs,  are  the  proper 
parties ;  for  they  alone  are  interested  in  the  term,  unless  the 
term  has  been  disposed  of  in  favor  of  third  persons ;  in  which 
case  they  also  should  be  made  parties,  {j) 

When  the  mortgage  has  been  absolutely  assigned  by  the 
mortgagee,  without  the  authority  and  privity  of  the  mortgagor, 
it  is  not  necessary,  in  a  bill  brought  by  the  latter  to  redeem, 
to  make  any  person  but  the  last  assignee  a  party  to  the  bill, 
however  many  mesne  assignments  have  been  made ;  for,  in 
such  a  case,  the  last  assignee  is  understood  to  have  contracted 
not  only  to  stand  in  the  place  of  the  original  mortgagee,  and 
to  represent  him,  but  also  to  stand  in  the  place,  and  as  the 

(/)  Story's  Eq.  PI.  §  183  ;  Thompson  vs.  Baskermlle,  3  Ch.  R.  215. 

ig)  Fell  vs.  Broion,  2  Bro.  Cla.  R.  278  ;  2  Barb.  Ch.  Pr.  196,  197 ;  Palk  vs. 
Clinton,  12  Ves.  58,  59;  Hobart  vs.  Abbott,  2  P.  Wms.  643. 

(h)    Edwards  on  Parties,  87-98  ;  Story's  Eq.  PI.  g  188. 

{i)  Story's  Eq.  PL  §  188  ;  Coop.  Eq.  PI.  37;  Anon.  2  Freem.  52;  Cla/rlc 
son  vs.  Bowyer,  2  Vei-n.  66 ;  Dexter  vs.  Arnold,  1  Sumner,  109. 

ij)    Osbourn  vs.  Fallows,  1  Rubs.  &  Mylne,  741 ;  Coop.  Eq.  PI.  37 


i 


BILLS  TO   REDEEM.  357 

Parties  to  —  Complainants  —  Terms  of  Redemption. 


representative  of  all  the  other  mesne  assignees,  until  the  title 
was  taken  by  himself;  and  he  may  accordingly  be  decreed 
to  convey,  {k) 

But  where  the  mortgagor  seeks  in  his  bill  an  accoimt  of  rents 
and  profits,  or  other  sums  received  by  the  mortgagee  before  the 
assigiiment,  the  mortgagee  should  be  made  a  party  to  the  bill, 
as  well  as  the  assignee,  for  he  is  a  necessary  party  to  the 
account.  (Z) 

Where  the  mortgagee  has  not  assigned  his  whole  interest  in 
the  mortgaged  property,  but  he  retains  an  interest  in  it  in 
part,  he  is  a  necessary  party,  as  well  as  the  assignee,  to  a  bill 
to  redeem,  [m)  So,  where  there  are  successive  mortgages,  the 
second  embracing  a  part  only  of  the  estate  comprehended  in 
the  first,  if  the  second  mortgagee  brings  a  bill  to  redeem  the 
first  mortgage,  and  the  equity  of  redemption  of  the  mortgagor 
in  the  diiferent  estates  has  become  vested  in  different  persons, 
all  of  them  should  be  made  parties  to  the  bill,  for  they  are  all 
interested  in  taking  the  account,  {n) 

Where  the  mortgagee  has  assigned  his  whole  interest  upon 
certain  trusts,  the  trustee  and  cestuis  que  trust,  or  beneficiaries, 
are  equally  necessary  parties  to  the  bill  to  redeem,  {o) 

SECTION  V. 
TEEMS    OF    BEDEMPTION. 

A  mortgagor  cannot  redeem  without  paying  what  is  really 
due ;  and  where  a  mortgagee  buys  in  an  incumbrance,  he  will 
be  allowed,  as  against  the  mortgagor,  all  that  is  due  upon  it, 

{k)  Hill  vs.  Adams,  2  Atk.  39 ;  Chambers  vs.  Goldmn,  9  Ves.  268,  269 ; 
Bishop  of  Winchester  vs.  Beaver,  3  Ves.  315,  316  ;  Lennon  vs.  Porter,  2 
Gray,  473. 

{I)  Anon.  2  Freem.  59;  Lowther  vs.  Carlton,  2  Atk.  139  ;  Story's  Eq.  PI. 
§  190. 

(m)  Hobart  vs.  Alhott,  2  P.  Wnis.  643  ;  Norrish  vs.  Marshall,  5  Mad.  475. 

{n)  Palk  vs.  Clinton,  12  Ves.  48 ;  Gholmondeley  vs.  Clint)m,  2  Jac.  &  Walk. 
134 ;  Story's  Eq.  PI.  §  191. 

io)  Whistler  vs.  Welib,  Bumb.  53 ;  Wetherell  vs.  Collins,  3  Mad.  255  ;  Drew 
vs.  Ha/rman,  5  Price,  319. 


358  BILLS   TO   KEDEEM. 

Terms  of  Redemption. 


although  he  may  have  bought  it  for  less.  But  it  is  otherwise 
if  the  heir  or  trustee  of  a  mortgagor  buys  in  an  incumbrance 
as  against  subsequent  incumbrances  and  creditors ;  in  which 
case  he  can  only  be  allowed  what  he  has  paid  for  the  incum- 
brance, (p)  A  mortgagor  tiling  a  bill  to  redeem  must  pay 
the  costs  of  persons  defendants  claiming  under  the  mortgagee, 
upon  the  principle  that,  at  law,  the  mortgage  being  forfeited, 
the  mortgagee  is  at  liberty  to  deal  with  it  as  his  own  prop- 
erty. (^) 

As  a  general  rule,  a  party  coming  into  a  court  of  equity  to 
redeem,  pays  costs  to  the  defendant,  in  addition  to  the  amount 
due  upon  the  mortgage,  although  he  obtains  the  relief  prayed 
for;  (r)  yet  if  the  defendant  improperly  resists  the  claim  of 
the  complainant  to  redeem,  or  sets  up  an  unconscientious 
defense,  he  will  be  refused  his  costs,  and  may  be  compelled  to 
pay  costs  to  the  adverse  party,  in  the  discretion  of  the 
court.  (5) 

There  can  be  no  redemption  without  an  allegation  of  pay- 
ments, or  a  tender  of  the  mortgage  debt  and  interest,  (t).  But 
£\  bill  for  redemption,  which  sets  forth  a  liquidation  by  the 
parties  of  the  amount  due,  and  a  tender  and  refusal  thereof, 
was  held  not  to  be  defective  for  want  of  an  offer  to  pay  what 
should  be  found  due  on  account,  (u) 

Payment  may  be  made  or  tendered  after  the  day  named  in 
the  mortgage,  (v)  Any  attempt  to  limit  or  fetter  the  right  to 
rc^deem  will  be  held  void,  (w) 

If  several  are  interested  in  the  equity  of  redemption,  and 

(/;)   Darcei/  vs.  Httll.  1  Vera.  18;  Mosier  vs.  Notion.  83  III.  519. 

iq)    2  Barb.  Cli.  Fr.  190:  Harper  vs.  El//,  70  111.  581. 

(r)  Vroom  vs.  Ditmas,  4  Paige,  Ch.  526 ;  Benedict  vs.  Oilman,  lb.  58 , 
8Le  vs.  Manliattan  Co.  lb.  49. 

^8)    Id.  lb. ;  2  Barb.  Ch.  Pr.  199. 

{t)  Saunders  vs.  Frost,  5  Pick.  259 ;  Bank  of  South  Carolina  vs.  Rose,  1 
Strobh.  Eq.  257  ;  Hooper  vs.  Bailey,  28  Miss.  328. 

(«)    Barton  vs.  May,  3  Sandf.  Ch.  R.  450. 

(d)    Rogan  vs.  Walker,  1  Wis.  527. 

{w)  Robinson  vs.  Farelly,  10  Ala.  472  ;  Henry  vs.  Davis,  7  Johns.  Ch.  40 ; 
Clark  vs.  Henry,  2  Cow.  324 ;  Wright  vs.  Bates,  13  Vt.  341 ;  Dougherty  vs. 
Colgan,  6  Gill  &  J.  275. 


BILLS   TO   EEDEEM.  35& 

Terms  of  Redemption  —  Frame  of  Bill. 

only  one  is  willing  to  redeem,  he  must  pay  the  whole  mortgage 
debt,  [x) 

The  tender  of  the  amount  due  must  be  absolute ;  where  the 
complainant  offered  to  pay  if  the  defendant  would  reassign  and 
transfer  to  him,  it  was  held  insufficient ;  iy)  and  not  only  the 
original  consideration,  but  subsequent  advances  made  by  the 
mortgagee,  must  be  tendered ;  (s)  nor  can  the  mortgagor  insist 
upon  a  release,  {a) 

A  party  seeking  to  redeem  a  mortgage  tainted  with  usury, 
will  be  required  to  pay  legal  interest,  on  the  principle  that  he 
who  asks  equitable  relief  should  do  equity,  and  equity  would 
require  him  to  pay  legal  interest.  (J) 

It  is  essential  to  a  bill  to  redeem  a  mortgage,  that  the  com 
plainant  should  offer  to  pay  the  debt,  interest  and  costs,  (c} 
But  it  is  not  essential  that  he  should  pay  the  money  due  before 
filing  his  bill,  or  that  he  make  any  allegation  of  such  offer. 
Such  an  offer  would,  however,  entitle  him  to  costs  and  a  sus- 
pension of  interest,  {d ) 


SECTION  VI. 
FRAME    OF    BILL. 

A  bill  to  redeem  may  properly  be  framed  with  a  double 
aspect,  so  that  the  complainant  may  avail  himself  of  a  tender  if 
his  proof  thereon  shall  be  sufficient,  or,  failing  in  that,  pray 
an  account  and  be  permitted  to  pay  the  amount  found  due. 
Regularly,  however,  the  prayer  should  be  in  the  alternative.  («) 

(a;)  Oibson  vs.  Crehone,  5  Pick.  146 ;  Taylor -vs.  Porter,  7  Mass.  355 ;  Smith 
vs.  Eelley,  37  Maine,  237. 

(y)  Wendell  vs.  New  Hampshire  Bank,  9  N.  H.  404. 

(2)     Ogle  vs.  Ship,  1  A.  K.  Marsh.  287  ;  see  Brown  vs.  Oaffney,  32  111.  251. 

{a)    Loring  vs.  Cook,  3  Pick.  48. 

(5)  Snyder  vs.  Oriswold,  37  111.  216  ;  Cushman  vs.  Sutphen,  42  111.  356  ; 
Bee  Oerrish  vs.  Black,  104  Mass.  400 ;  Parkhurst  vs.  Oummings,  56  Maine, 
155. 

(c)  Beekman  vs.  Frost,  18  Johns.  144 ;  S.  C.l  Johns.  Ch.  R.  288. 

(d)  Barnard  vs.  Cushman,  35  111.  452 ;  Dwen  vs.  Blake,  44  111.  135. 

(e)  Oooding  vs.  Riley,  50  N.  H.  400. 


360  BILLS   TO   REDEEM. 

Bill  by  Heirs  of  Mortgagor  against  Mortgagee  to  Redeem. 

The  complainant  should  ofFer  in  his  bill  to  pay  the  amount 
due  the  defendant.  {/) 

Wo.  ISJf..    Bill  hy  heirs  at  law  of  mortgagor,  against  mortgagee^ 

to  redeem. 

To  the  Honorable .  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orators,  A.  B.  and  B.  B.,  of,  etc.,  respectfully  represent 
unto  your  honor,  that  they  are  the  sons  and  only  heirs  at  law  ot 
C.  B.,  late  of,  etc.,  deceased ;  that  the  said  C.  B.,  in  his  life- 
time, to  secure  the  payment  of  the  principal  sum  and  interest 

of  one  certain  promissory  note   for  the  sum  of dollars, 

bearing  date,  etc.,  and  payable after  date,  with  interest  at 

the  rate  of per  cent,  per  annum,  signed  by  the  said  C.  B., 

and  payable  to  one  E.  F.,  the  defendant  hereinafter  named,  on, 
etc.,  by  a  mortgage  deed  of  that  date,  conveyed  to  the  said  E.  F. 
in  fee  simple,  the  following  described  real  property,  situate  and 

being  in  the  county  of ,  in  the  state  of ,  to  wit:  {Here 

insert  description,)  subject,  however,  to  a  condition  of  defeas- 
ance upon  the  payment  of  the  principal  sum  and  interest  afore- 
said, according  to  the  tenor  and  effect  of  the  said  promissory 
note ;  which  said  mortgage  deed  was,  on,  etc.,  hied  for  record 

in  the  recorder's  office  of  the  said  county  of ;  as  by  the 

said  mortgage  deed,  now  in  the  possession  or  under  the  control 
of  the  defendant,  will,  when  produced,  appear ;  a  copy  of  which 
is  hereto  attached  and  marked  "  Exhibit  A,"  and  is  made  a  part 
of  this  bill. 

Your  orators  further  represent  that  the  principal  sum  and 
interest  of  the  said  promissory  note  was  not  paid  at  the  time 
the  same  became  due,  whereby  the  estate  of  the  defendant  in 
the  said  premises  became  absolute  at  law;  whereupon  the 
defendant  entered  into  possession  of  the  same,  and  the  receipts 
of  the  rents  and  profits  thereof,  and  still  retains  the  same. 

Your  oratoi-s  further  represent,  that  the  said  C.  B.,  on,  etc., 
departed  this  life,  leaving  your  orators,  then  infants  under  the  age 
of  twenty-one  years,  his  sons  and  only  heirs  at  law  ;  that  your 
orator,  A.  B.,  on,  etc.,  attained  the  age  of  twenty-one  years, 
and  your  orator,  B.  B.,  attained  the  same  age  on,  etc. ;  that  your 
orators  have,  from  time  to  time,  since  their  majority  applied  to 
the  defendant,  E.  F.,  to  be  let  in  to  redeem  the  said  mortgaged 
premises;  but  there  being  a  considerable  amount  due  upon  the 


{P  Beekman  vs.  Frost,  18  Johns.  U8;  8.  C  I  Johns.  Ch  R.  288. 


BILLS   TO   REDEEM.  361 

Bill  by  Heirs  of  Mortgagor  against  Mortgagee  to  Redeem. 

said  mortgage,  they  were  not  tlieii  able  to  pay,  and  the  defend- 
ant refused  to  permit  your  oi-ators  to  redeem  the  said  premises 
on  any  other  terms  than  a  full  payment  of  all  the  money  which 
he  alleged  to  be  due  him,  without  deducting  the  rents  and 
protits  received  by  him  while  he  held  the  possession  of  said 
premises. 

Your  orators  further  represent,  that  the  interest  of  the  said 

principal  sum  of dollars,  and  all,  or  the  greater  part  of  the 

principal,  have  been  satisfied  and  paid  out  of  the  rents  and 
protits  of  the  said  mortgaged  premises,  received  by  the  defend- 
ant, which  are  quite  considerable ;  and  your  orators  have  lately 
renewed  their  requests  to  the  defendant  to  permit  them  to 
redeem  said  premises,  and  to  enable  your  orators  to  do  so,  to 
account  with  them  for  the  rents  and  profits  of  the  said  prem- 
ises received  by  the  defendant  during  the  time  he  has  been  in 
the  possession  of  the  same,  which  the  defendant  refused  to  do, 
pretending  that  your  orators  have  no  equity  of  redemption  in 
the  said  premises. 

Forasmuch,  therefore,  as  your  orators  are  without  remedy  in 
the  premises,  except  in  a  court  of  equity  ;  and  to  tlie  end  that 
the  said  C.  D.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut 
not  tinder  oath,  the  answer  under  oath  heing  hereby  waived ; 
-and  especially  that  he  may  be  compelled  to  full}-  and  particu- 
larly answer  and  set  forth  whether  any,  and  what  part,  of  the 
said  principal  sum  and  interest  of  the  said  promissory  note,  is 
now  due  and  owing  to  him  on  the  security  of  the  said  mort- 
gaged premises,  and  particularly  how  he  makes  out  and  com- 
putes the  same ;  and  whether  the  yearly  rents  and  profits  of 
the  said  premises,  since  the  defendant  has  been  in  possession 
thereof,  have  not  been  much  more,  and  how  much,  than  suf- 
ficient to  pay  the  interest  due  on  the  said  principal  sum,  and 
all,  or  a  considerable,  and  what,  part  thereof,  or  how  otherwise ; 
and  that  the  defendant  may  answer  and  fully  set  forth  at  what 
yearly  rent  or  rents  the  said  mortgaged  premises  have,  or  might 
have  been  let,  since  he  has  been  in  possession  thereof;  and 
whether  he  has  not,  or,  without  his  willful  neglect  or  default, 
might  not  have  received  the  whole  of  the  rents  and  ju-ofits  of 
the  said  mortgaged  premises,  since  he  has  been  in  poss<'ssion 
thereof,  and  if  not,  why  not ;  and  that  an  account  may  be  taken, 
under  the  direction  of  the  court,  of  what  is  now  due  and  owing 
to  the  defendant  for  the  principal  sum  and  interest  aforesaid ; 
and  that  an  account  may  be  taken  of  the  rents  and  profits  of 
the  said  premises,  received  by  the  defendant,  or  by  any  other 
person  on   his  behalf,  or  which,  without  his  willful  neglect  or 


362  BILLS   TO   REDEEM. 

Bill  to  Redeem  from  Deed  absolute  on  its  Face. 

default,  might  have  been  received  by  him  since  he  entered  into 
the  possession  of  said  premises ;  and  that  in  taking  such  account, 
rests  may  be  made,  from  time  to  time,  when  and  as  the  rents 
and  profits  shall  appear  to  have  exceeded  the  interest  in  arrear ; 
and  that  upon  the  payment  by  your  orators  of  what,  if  anything, 
shall  be  found  remaining  due  to  the  defendant,  in  respect  of 
the  said  principal  sum  and  interest,  which  your  orators  hereby 
offer  to  pay,  the  defendant  may  be  decreed  to  surrender  and 
deliver  up  the  possession  of  the  said  mortgaged  premises  to 
your  orators ;  and  that  the  defendant  may  be  compelled  to 
release  said  mortgage  upon  the  records  of  said  county  ;  and  that 
your  orators  may  have  such  other  and  further  relief  as  equity 
may  require,  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 
chancery,  directed  to  the  sheriff  of  the  said  county  of com- 
manding him  that  he  summon  the  defendant,  E.  F.,  to  appear 

before  the  said  court,  on  the  first  day  of  the  next term 

thereof,  to  be  held  at  the  court  house  in ,  in  the  county 

of aforesaid,  then  and  there  to  answer  this  bill,  etc. 

Sol.  for  Complainant. 

{Attach  "  Exhibit  A.'') 

No.  135.    Bill  to  redeem  from  a  deed  absolute  on  its  face^  but 
which  was  intended  as  a  mortgage. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  your  orator  being  indebted  unto  one  C.  D., 

of,  etc.,  the  defendant  hereinafter  named,  in  the  sum  of 

dollars,  to  secure  the  same,  with  interest  thereon  at  the  rate  of 
—  per  cent,  per  annum,  to  be  paid  on,  etc.,  by  an  absolute  deed 
of  conveyance  of  that  date,  conveyed  to  the  said  C.  D.  in  fee 
simple,  the  following  described  real  property,  to  wit :  {Here 
insert  the  description  ;)  which  said  deed  was,  on,  etc.,  duly  filed 

for  record  in  the  recorder's  office  of  the  said  county  of ;  as 

by  the  said  deed,  now  in  the  possession  or  under  the  control  of 
the  said  C.  D.  will,  when  produced,  appear ;  a  copy  of  which 
is  hereto  attached,  and  marked  "  Exhibit  A,"  and  is  made  a 
part  of  this  bill  of  complaint. 

Your  orator  further  represents,  that  the  said  deed  of  convey- 
ance, although  appearing  to  be  absolute  on  its  face,  was  not 
intended  to  be  such  by  your  orator  and  the  said  C.  D.,  but  on 
the  contrary  thereof,  it  was  expressly  agreed  and  understood 


BILLS   TO   REDEEM.  363 

Bill  to  Redeem  from  Deed  absolute  on  its  Face. 


between  them,  that  the  same,  and  the  said  premises  thereby  con- 
veyed, were  to  be  lield  by  the  said  C.  D.  simply  as  a  security  for 
the  payment  of  the  said  sum  of  money,  and  interest  as  aforesaid ; 
and  that  upon  the  payment  of  that  sum  and  interest  to  tlie  said 
C.  D.,  the  said  C.  D.  wouhi  re-convey  the  said  premises  to  your 
orator  by  an  absolute  deed. 

Your  orator  further  represents,  that  the  said  C.  D.,  on,  etc., 
entered  into  the  possession  of  the  said  premises,  and  the 
receipts  of  the  rents  and  profits  thereof,  and  still  retains  the 
same. 

Tour  orator  further  represents,  that  he  has  paid  all  the  inter- 
est due  on  the  said  sum  of dollars,  to  the  said  C.  D., 

from  the  date  of  the  said  deed  until,  etc.,  wdien  the  said  C.  D. 
refused  to  receive  further  interest  thereon  from  your  orator ; 
that  your  orator  has  always  been,  and  still  is,  ready  to  pay  the 
said  C.  D.  what  is  due  to  him  for  principal  and  interest  on  the 
said  sum  of  money ;  and  your  orator  well  hoped  that  the  said 
C.  D.  would  have  received  the  same,  and  that  he  would  re-con- 
vey to  your  orator  the  said  premises  as  in  justice  and  equity  he 
ought  to  have  done. 

But  now  so  it  is,  may  it  please  your  honor,  he,  the  said  C. 
D.,  in  order  to  deprive  and  defeat  your  orator  of  the  benefit 
of  redeeming  the  said  premises,  does  pretend  and  give  out  that 
your  orator  did  not  execute  the  said  deed  of  conveyance  to  the 
said  C.  D.  as  a  security  for  the  repayment  of  the  said  sum  of 
money,  with  interest  as  aforesaid,  but  does  pretend  that  the 
said  sum  of dollars  was  paid  to  your  orator  in  considera- 
tion of  the  absolute  purchase  of  the  said  premises ;  and  that 
the  said  deed  was  not  intended  between  the  parties  thereto  to 
be  a  mere  security  for  the  said  sum  of  money,  and  interest  as 
aforesaid ;  whereas,  your  orator  charges  the  contrary  of  such 
pretenses  to  be  the  truth  ;  and,  upon  the  pretenses  aforesaid, 
the  said  C.  T>.  refuses  to  come  to  any  manner  of  account  with 
your  orator,  or  to  re-convey  the  said  premises  to  him,  although 
your  orator  has  frequently,  and  in  a  friendly  manner,  applied 
to  him  for  that  purpose,  and  offered  to  pay  him  whatever,  if 
anything,  should  be  found  to  be  due  to  the  said  C.  D.  upon 
an  account  being  taken  with  reference  to  the  said  transaction. 
All  of  which  actings,  doings  and  pretenses  of  the  said  C.  D. 
are  contrary  to  equity  and  good  conscience,  and  tend  to  the 
manifest  wrong,  injury  and  oppression  of  your  orator. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity,  and  to  the  end  that 
the  said  0.  D.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut 


364  BILLS   TO   EEDEEM. 

Bill  to  Redeem  Goods  Pledged,  etc. 

not  under  oath,  the  answer  under  oath  heing  hereby  waived ; 
and  tliat  an  account  may  be  taken  under  the  direction  of  this 
honorable  court,  of  what  is  now  due  and  owing  to  the  defend- 
ant for  the  principal  sum  and  interest  aforesaid ;  and  that  an 
account  may  also  be  taken  of  the  rents  and  profits  of  the 
said  premises,  received  by  the  defendant,  or  by  any  other 
person  on  his  behalf,  or  which,  without  his  willful  neglect  or 
default,  might  have  been  received  by  him  since  he  entered  into 
the  possession  of  said  premises ;  and  that,  in  taking  such 
account,  rests  may  be  made  from  time  to  time,  when  and  as  the 
rents  and  profits  shall  appear  to  have  exceeded  the  interest  in 
arrear ;  and  that  upon  the  payment  by  your  orator  of  what,  if 
anything,  shall  be  found  remaining  due  to  the  defendant  in 
respect  of  the  said  principal  sum  and  interest,  which  your 
orator  hereby  offers  to  pay,  the  defendant  may  be  decreed  to 
surrender  and  deliver  up  the  possession  of  the  said  premises 
to  your  orator ;  and  that  the  defendant  may  be  compelled  to 
re-convey  the  said  premises  to  your  orator  by  sufficient  and 
proper  deed  of  conveyance  in  fee ;  and  that  he  be  compelled 
to  surrender  to  your  orator  all  deeds,  writings  and  tax  receipts 
pertaining  to  said  premises ;  and  that  your  orator  may  have 
such  other  and  further  relief  as  equity  may  require  and  to  your 
honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  for  process  as  in  No. 
ISJf.,  ante,  jpage  360.) 

No.  136.     Bill  to  redeem  goods  which  were  deposited  as 
a  security  for  money  lent. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  i-epresents  unto  your 
honor,  that  your  orator  having  occasion  for  a  sum  of  money 
for  the  purpose  of  his  business,  made  application  to  one  C.  D., 
of,  etc.,  the  defendant   hereinafter  named,  to  lend  him  the 

same,     and   thereupon    the    said   C.  D.,   on   or   about   , 

advanced  and  lent  to  your  orator  the  sum  of dollars,  and 

in  order  to  secure  the  repayment  thereof,  with  interest  at  the 
rate  of  —  per  cent,  per  annum,  your  orator  deposited  with  the 
defendant  the  following  described  property,  to  wit :  {Here 
describe  it,)  which  was  of  the  value  of dollars  and  up- 
wards, and  at  the  same  time  executed  and  delivered  to  the 
defendant  a  bill  of  sale  of  the  said  goods  and  chattels  so 
deposited  Mnth  him,  but  it  was  not  meant  and  intended  thereby, 


BILLS   TO   REDEEM.  365 

Bill  to  Set  Aside  Foreclosure,  and  to  Redeem. 

either  by  your  orator  or  tlie  defendant,  that  the  said  trans- 
action should  amount  to  an  absolute  sale  of  tlie  said  goods  and 
chattels  to  the  defendant,  but  it  was  expressly  agreed  between 
your  orator  and  the  defendant  that  your  orator  should,  never- 
theless, be  at  liberty  to  redeem  the  same. 

And  your  orator  further  represents,  that  being  desirous  to 
redeem  the  said  goods  and  chattels,  he  has  repeatedly  applied  to 

the  defendant  and  has  offered  to  repay  him  the  said  sum  of 

dollars,  with  lawful  interest  thereon,  on  having  said  goods  and 
chattels  re-delivered  to  him;  with  which  just  and  reasonable 
requests  your  orator  well  hoped  that  the  defendant  would  have 
complied,  as  in  justice  and  equity  he  ought  to  have  done. 
But  now  so  it  is,  may  it  please  your  honor,  he,  the  said  C.  D., 
denies  that  said  property  was  delivered  tcr  him  as  a  security, 
and  refuses  to  allow  your  orator  to  redeem  the  same,  or  to 
re-deliver  the  said  property  to  your  orator. 

Forasmuch,  therefore,  as  your  orator  is  without  adequate 
remedy  in  the  premises,  except  in  a  court  of  equity  ;  and  to  the 
end  that  the  said  C.  D.,  who  is  made  party  defendant  to  this 
bill,  may  be  required  to  make  full  and  direct  answer  to  the 
same,  hut  not  under  oath,  the  miswer  under  oath  heing  hereby 
waived  I  and  that  an  account  may  be  taken  of  what  is  due  to  the 
defendant,  for  principal  and  interest,  in  respect  to  the  said  loan 

of dollars ;  and  that  upon  payment  thereof  by  your  orator, 

which  he  hereby  offers  to  pay,  the  defendant  may  be  decreed 
to  deliver  over  to  your  orator  the  said  goods  and  chattels  so 
deposited  with  him  as  aforesaid  ;  and  that  your  orator  may  have 
such  other  and  further  relief  in  the  premises  as  equity  may 
require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sheriff  of  the  said  county  of , 

commanding  him  to  summon  the  defendant,  C.  D.,  to  appear 

before  the  said  court  on  the  first  day  of  the  next term 

thereof,  to  be  held  at  the  court  house,  in -,  in  the  county 

aforesaid,  then  and  there  to  answer  this  bill,  etc. 

Sol.  for  Complaina/nt. 

No.  137.    Bill  to  set  aside  a  decree  of  foreclosure,  etc.,  hy  heir 
of  mortgagor  against  mortgagee. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  B.  B.,  late  of,  etc.,  no-^  deceased,  in  his  lifetime. 


366  BILLS   TO   REDEEM. 

Bill  to  Set  Aside  Foreclosure,  and  to  Redeem. 

on,  etc.,  executed  a  mortgage  deed  in  fee  simple  to  one  C.  D., 
the  defendant  hereinafter  named,  upon  the  following  described 
premises,  to  wit :  {Here  ivsert  description  •)  which  said  mort- 
gage was  made  to  secure  the  payment  of  a  certain  promissory 

note  of  the  same  date,  for  the  sum  of dollars,  payable  to 

the   defendant  after   date ;    which    said    mortgage   was 

recorded  in  the  recorder's  office  of  said  county,  on,  etc.,  as  will 
more  fully  appear  from  a  copy  of  said  mortgage  hereto  attached 
and  marked  "  Exhibit  A." 

Your  orator  further  represents,  that  the  said  B.  B.  departed 
this  life,  on,  etc.,  leaving  your  orator,  his  son  and  only  heir  at 
law,  then  of  about  the  age  of years. 

Your  orator  further  represents,  that  during  his  minority,  and 
on,  etc.,  the  defendant  filed  his  bill  of  complaint  in  this  court 
against  your  orator,  for  a  foreclosure  of  his  right  of  redemption 
in  the  said  mortgaged  premises;  but  your  orator  was  not  repre- 
sented in  such  bill  to  be  then  an  infant ;  and  the  defendant 
caused  and  procured  one  E.  F.,  since  deceased,  who  had  acted  as 
the  solicitor  in  the  management  of  your  orator's  said  father's 
afltairs  in  his  lifetime,  to  put  in  an  answer  in  the  name  of  your 
orator,  and  without  ever  acquainting  your  orator  or  any  of  his 
friends  or  relations  thereof;  in  which  said  answer  a  much  greater 
sum  was  stated  to  be  due  from  your  orator,  upon  the  said  promis- 
sory note  and  mortgage  to  the  defendant,  than  in  fact  was  really 
owing  to  him,  and  for  which  it  was  untruly  stated  that  the  said 
mortgaged  premises  were  an  insufficient  security  ;  and  in  conse- 
quence of  such  answer  being  put  in,  the  defendant  afterwards, 
on,  etc.,  in  conjunction  with  the  said  E.  F.,  obtained  an  abso- 
lute decree  of  foreclosure  against  your  orator  ;  which  your 
orator  has  only  lately  discovered,  and  of  which  he  had  no 
notice ;  and  in  which  said  decree  no  day  was  given  to  your 
orator,  wlio  was  an  infant  when  the  same  was  rendered,  to 
redeem  when  he  became  of  the  age  of  twenty-one  years ;  as 
by  the  record  and  proceedings  of  the  said  foreclosure  now 
remaining  in  this  court,  reference  thereto  being  had,  will  more 
fully  appear. 

Your  orator  further  represents,  that  he  attained  the  age  of 
twenty-one  years  on,  etc,  ;  and  shortly  afterwards,  having  dis- 
covered that  such  transactions  had  taken  place  during  his 
minority  as  aforesaid,  by  liimself  and  his  agent  represented  the 
same  to  the  defendant,  and  requested  him  to  deliver  up  posses- 
sion of  the  said  mortgaged  premises  to  your  orator,  upon  being 
paid  the  principal  sum  and  interest,  if  any,  actually  and  fairly  due 
thereon,  which  amount  your  orator  tendered,  and  has  always 
been  ready  to  pay,  and  which  would  have  been  paid  by  the 


BILLS   TO   REDEEM.  367 

Decree. 

personal  representatives  of  tlie  said  B.  B.,  out  of  bis  personal 
assets,  during  your  orator's  minority,  had  any  application  been 
made  for  that  purpose,  but  this  the  defendant  refused  to  do. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut  not 
under  oath.,  the  answer  under  oath  Ijeing  hereby  waived  ;  and 
that  the  said  decree  of  foreclosure  may  be  set  aside,  and  be  de- 
clared to  be  null  and  void ;  and  that  an  account  may  be  taken 
of  what,  if  anything,  is  now  due  to  the  defendant  for  principal 
and  interest  on  said  promissory  note  and  mortgage ;  and  that 
an  account  may  also  be  taken  of  the  rents  and  profits  of  said 
mortgaged  premises,  which  have  or  might  have  been  received 
by  or  on  behalf  of  the  defendant  since  he  came  in  possession 
thereof;  and  if  the  same  shall  appear  to  have  been  more  than 
the  principal  and  interest  due,  then  that  the  residue  thereof 
may  be  decreed  to  be  paid  to  your  orator,  and  that  your  orator 
may  be  at  liberty  to  redeem  the  said  mortgaged  premises  on 
payment  of  the  principal  sum  and  interest,  if  any,  remaining 
due  on  the  said  secui-ity ;  and  that  the  defendant  may  be  de- 
creed, on  being  paid  such  principal  sum  and  interest,  which 
your  orator  hereby  ofl'ers  to  pay,  to  deliver  up  the  possession 
of  said  mortgaged  premises,  free  from  all  encumbrances,  to 
your  orator ;  and  that  the  said  mortgage  may  be  fully  satisfied 
and  released  of  record ;  and  that  your  orator  may  have  such 
other  and  further  relief  in  the  premises  as  equity  may  require 
and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,   directed  to  the  sheriff  of  the  said   county  of , 

commanding  him  that  he  summon  the    defendant,  C.  D.,  to 

appear  before  the  said  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in in  the  county 

of afoi'esaid,  then  and  there  to  answer  this  bill,  etc. 

Sol.  for  Complainant. 

SECTION  VII. 
DECREE. 

If  the  mortgagor  is  permitted  to  redeem,  the  decree  directs 
a  reference  to  the  master  in  chancery  to  ascertain  and  report 
the  amount  due  for  principal  and  interest,  and  orders  the  com- 
plainant to  pay  that  amount  within  a  specified  time  after  the 
confirmation  of  the  master's  report,  together  with  the  costs ; 


368  BILLS   TO   EEDEEM. 

Decree  for  Redemption. 

and  that  upon  his  so  doing,  the  mortgagor  shall  convey  to  him 
the  mortgaged  premises.  And  it  dii-ects  that  upon  the  com- 
plainant's default,  the  bill  be  dismissed  with  costs,  [g) 

The  time  allowed  for  the  redemption  is  not  fixed  and  certain, 
but  rests  in  the  sound  discretion  of  the  court,  to  be  regulated 
by  circumstances,  {h)  And,  in  general,  the  time  allowed  will 
not  be  afterwards  extended,  {i) 

Where  the  party  fails  to  redeem  within  the  time  specified, 
the  usual  decree  is  that  the  bill  be  dismissed ;  and  such  dis- 
missal amounts  to  a  bar  of  the  equity  of  redemption,  {j)  But 
the  dismissal  of  the  bill,  for  want  of  prosecution,  will  not  have 
that  effect.  (Jc) 

The  decree  of  dismissal  may  be  moved  for,  of  course,  after 
the  master's  report  has  been  confirmed,  upon  an  afiidavit  that 
the  time  has  expired,  and  the  money  has  not  been  paid.  (Z) 

No.  138.     Decree  for  redemption. 

{Cajption,  and  title  of  cause  as  in  No.  79,  &nte,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answer  of  the  defendant  thereto,  the  replica- 
tion of  the  complainant  to  such  answer,  and  the  proofs  taken  in 
said  cause,  and  having  been  argued  by  counsel  for  the  respective 
parties ;  and  the  court  being  fully  advised  in  the  premises,  doth 
find :  that  the  allegations  in  the  said  bill  contained  are  true  as 
therein  stated ;  and  that  the  equities  of  this  cause  are  with  the 
complainant. 

It  is  therefore  ordered,  adjudged  and  decreed,  by  the  court, 
that  this  cause  be  referred  to  the  master  in  chancery  of  this 
court,  to  take  an  account  of  what  is  due  to  the  defendant  for 
principal  and  interest  on  the  said  mortgaged  indebtedness 
in  the  bill  of  complaint  mentioned  ;  and  also  to  take  an  account 

{g)    2  Barb.  Ch.  Pr.  199. 

(A)    Ferine  vs.  Dunn,  4  Johns.  Ch.  140. 

(i)  Id. ;  Brinckerhoff  vs.  Lansing,  4  Johns.  Ch.  65  ;  NovoseUski  \a.Wak6- 
field,  17  Ves.  417. 

(/)  Ferine  vs.  Dunn,  4  Johns.  Ch.  142 ;  Gholmiey  vs.  Duchess  of  Oxford, 
2  Atk.  267 ;  Bishop  of  Winchester  vs.  Paine,  11  Ves.  199 

{k)   Handsand  vs.  Hardy,  18  Ves.  460. 

(I)  Stuart  vs.  Worrall,  1  Bro.  C.  C.  581 ;  Seaton  on  Decrees,  147  ;  McDon- 
ough  vs.  Shewbridge,  2  Ball  &  B.  564. 


BILLS   TO   REDEEM.  369 

Decree  for  Redemption. 

of  the  rents  and  profits  of  the  said  mortgaged  premises,  which 
have  come  to  the  hands  of  the  defendant,  or  of  any  other  per- 
son or  persons  by  his  order,  or  for  his  nse,  or  which  he,  without 
his  willful  default,  might  have  received ;  and  what  shall  be 
coming  on  the  said  account  of  rents  and  profits,  is  to  be  deducted 
out  of  what  shall  be  found  due  to  the  defendant  for  principal 
and  interest.  And  for  the  better  taking  of  the  said  account, 
the  parties  are  to  produce  before,  and  leave  with,  the  said  mas- 
ter, all  deeds,  books,  papers,  tax  receipts,  and  writings  in  their 
possession  or  power  relating  thereto,  and  are  to  be  examined 
on  oath  as  the  said  master  shall  direct.  And  the  said  master 
will  cause  to  come  before  him  all  such  witnesses  whose  testi- 
mony he  may  deem  necessary  in  the  taking  of  the  said  accounts, 
and  examine  them  upon  oath  and  interrogatories  touching  the 
matters  aforesaid.  And  what  upon  the  balance  of  the  said 
account,  shall  be  certified  to  be  due  to  the  defendant,  for  his 
principal  and  interest,  and  costs,  it  is  ordered^  adjudged 
and  decreed^  that  the  complainant  do  pay  to  the  defendant, 

within after  the  said  master  shall  have  made  his  report, 

and  the  same  shall  have  been  confirmed ;  and  that  upon  such 
payment  being  made,  the  defendant  do  resurrender  the  said 
mortgaged  premises,  to  wit:  {Here  describe  the  premises^ 
unto  the  complainant,  or  unto  such  person  or  persons  as  he 
shall  direct,  free  and  clear  of  all  encumbrance,  done  by  him,  or 
any  person  claiming  by,  from,  or  under  him,  and  deliver  unto 
the  complainant  all  deeds  and  writings  in  his  custody  or  power 
relating  to  the  said  mortgaged  premises.  But  in  default  of  the 
complainants  paying  unto  the  defendant  what  shall  be  so 
certified  to  be  due  him  for  principal,  interest  and  costs  as  afore- 
said, after  such  deductions  made  thereout  as  aforesaid,  at  the 
time  above  mentioned,  it  is  ordered,  adjudged  and  decreed,  that 
the  complainant's  bill  do  from  thenceforth  stand  dismissed  ont 
of  this  court  with  coats  to  be  taxed. 

24 


CHAPTER  XXYIII. 

BILLS   TO   FORECLOSE   MORTGAGES. 


Section  1. 

Generai,  Nature  of. 

2, 

When  Proper. 

3. 

Parties. 

4. 

Frame  of  Bill. 

5. 

Trust  Deeds  and  Sale  Mortoaokb 

6. 

Strict  Foreclosure. 

7. 

Defenses  to. 

8. 

Decrees  op  Foreclosure. 

SECTION  I. 

GENERAL   NATURE   OF. 

A  foreclosure  in  equity  is  a  proceeding  by  which  the  mort- 
gagor's right  of  redemption  in  the  mortgaged  premises  is 
forever  barred  and  foreclosed.  This  takes  place  when  the 
mortgagor  has  forfeited  his  estate  by  non-payment  of  the 
money  due  on  the  mortgage  at  the  time  appointed,  but  still 
retains  the  equity  of  redemption ;  in  such  case  the  mortgagee 
may  file  a  bill  in  a  court  of  equity  to  compel  the  mortgagor  to 
redeem  his  estate  presently,  or,  in  default  thereof,  to  be  forever 
closed  or  barred  from  any  right  of  redemption. 

There  are  two  general  methods  of  foreclosing  an  equity  of 
redemption  after  a  breach  of  condition,  through  the  medium 
of  a  bill  in  chancery.  The  one  a  strict  foreclosure,  as  it  is 
commonly  called,  whereby,  after  certain  proceedings,  the  mort- 
gagee is  adjudged  absolute  owner  of  the  property  to  which  he 
had  before  only  a  conditional  or  defeasible  title  ;  the  other,  and 
the  most  usual  mode,  a  sale  of  the  jproperty  under  the  direc- 
tion of  an  officer  of  the  court,  in  which  case  the  proceeds  are 
applied  to  the  discharge  of  incumbrances  according  to  priority, 
and  the  balance,  if  any,  paid  over  to  the  mortgagor. 

The  statute  of  Illinois  lias  also  provided  a  mode  of  fore- 
closure of  mortgages  by  means  of  a  proceeding  by  scire  facias. 


_  1 


BILLS   TO   FOKECLOSE  MORTGAGES.  371 

Nature  of  —  When  Proper. 

This  statutory  proceeding  cannot  be  resorted  to  safely  in 
every  instance.  And  it  may  be  remarked,  generally,  that 
where  there  are  numerous  or  conflicting  interests  to  be  affected, 
or  any  complication,  the  safest  mode  of  foreclosure  is  by  a  bill 
in  chancery. 

For  proceedings  to  foreclose  by  scire  facias,  see  Puterbaugh's 
Com.  Law  PI.  and  Pr.  pp.  659-663. 

SECTION  II. 
^  WHEN    PKOPER. 

If  the  mortgagor  has  made  default  in  the  payment  of  the 
money  due  according  to  the  terms  of  the  mortgage,  or  has 
incurred  a  forfeiture  by  reason  of  any  other  provision  of  the 
instrument,  the  mortgagee  may  tile  his  bill  to  foreclose. 

If  a  defeasance  in  the  usual  form  in  a  mortgage  deed  pro- 
vides that  if  the  notes  are  not  paid  as  they  become  due,  that 
the  mortgage  is  forfeited  to  that  extent,  the  holder  of  a  note  is 
not  obliged  to  wait  for  the  whole  indebtedness  to  mature  before 
he  can  proceed  to  foreclose,  {a) 

So,  where  the  interest,  falling  due  yearly,  on  a  note  secured 
by  a  mortgage,  is  not  paid,  the  mortgage  may  be  foreclosed  to 
enforce  its  payment.  In  such  case  it  is  not  necessary  to  wait 
until  the  note  matures.  (J) 

Where  the  condition  of  a  bond  and  mortgage  is,  that  on  fail- 
ifre  to  pay  an  installment  of  interest  when  due,  the  principal 
should  immediately  become  payable,  a  neglect  to  pay  an  install- 
ment of  interest,  when  it  becomes  due,  works  a  forfeiture  of 
the  mortgage,  (c) 

But  where  a  mortgage  was  given  to  secure  several  notes, 
made  payable  at  diflerent  times,  with  authority  to  make  sale 


{a)    Vaiisant  vs.  Allmon,  23  111.  31;  see  Hards  vs.  Burton,  "79  111.  504. 

(6)  Morganstein  vs.  Elees,  30  111.  422 ;  Buggies  vs.  8.  M.  R.  R.  Co.  5  Chi- 
cago Jjegal  News,  110 ;  seeWilliamson  vs.  New  Albany  &  8.  R.  R.  Co.  2  Red. 
Railw.  §  235. 

(c)    Ottawa  N.  P.  B.   Co.  vs.  Murray,  15  111.  336 ;  Harper  vs.  Ely,  66 

m.  179. 


372  BILLS   TO   FOKECLOSE   MORTGAGES. 

When  Proper  —  Parties  —  Complainants. 

of  the  premises  upon  the  non-payment  at  maturity  of  any  of 
the  notes  for  the  satisfaction  oi  such  of  therm  as  should  then  he  due, 
if  the  mortgage  resorts  to  equity  to  foreclose,  he  can  only  obtain 
foreclosure  for  such  of  the  notes  as  shall  have  become  due,  as 
that  is  the  limit  of  the  power  of  sale  in  the  mortgage,  {d)  And 
a  foreclosure  in  such  case,  for  the  part  of  the  debt  which  was 
due,  would,  of  necessity,  be  a  release  of  the  security  for  the 
amount  not  due.  {e)  And  in  such  case,  the  purchase  of  the 
premises  by  the  mortgagee  and  holder  of  the  notes  not  due, 
would  operate  as  a  satisfaction  of  the  entire  debt.  {/) 

The  assignee  of  a  note  is  in  equity  regarded  as  the  purchaser 
of  all  the  securities  and  remedies  attached  to  it,  and  may  per- 
Bue  them  at  his  discretion.  So  may  the  assignees  in  succession, 
of  separate  parts  of  the  same  debt ;  and  the  assignee  of  the  first 
due  of  several  notes  secured  by  mortgage  has  a  priority  of 
claim,  and  can  foreclose  and  sell.  And  the  holder  of  the  other 
notes  can  redeem  in  succession,  according  to  priority,  {g) 

A  foreclosure  of  a  mortgage  cannot  take  place  as  to  one  por- 
tion of  the  mortgaged  premises,  and  not  as  to  the  residue.  So 
long  as  the  mortgagor  is  suffered  to  remain  in  possession  of  any 
part  of  the  premises,  his  right  of  redemption  to  the  whole  will 
continue,  (A) 

SECTION  III. 
PARTIES. 

Complainants. — It  may  be  stated,  as  a  general  rule,  that  all 
those  who  have  an  interest  in  the  mortgage  and  may  be  affected 
by  the  decree  are  proper  parties.  If  the  mortgagee  alone  has 
any  interest,  he  is  of  course  the  only  necessary  party  complain- 
ant. If  the  mortgagee  is  deceased,  the  bill  should  be  brought 
in  the  name  of  the  executor  or  administrator,  and  not  of  the 


[d)  Smith  vs.  Smith,  33  111.  198. 

(e)  lb.;  see  Hards  vs.  Burton,  79  III.  504. 
(/)  Mines  vs.  Moore,  41  111.  273. 

(</)    Vansant  vs.  Allmon,  28  111.  31. 
[h)   Sjmng  vs.  Ilaines,  21  Maine,  126. 


BILLS   TO   FORECLOSE   MORTGAGES.  373 

Parties  to  —  Complainants  —  Defendants. 

heirs.  (^)  If  the  mortgagee  has  assigned  absolutely,  and  di- 
vested himself  of  all  interest,  he  need  not  be  made  a  party,  {j) 

If  the  mortgagee  has  assigned  the  mortgage  as  security  or 
pledge  for  a  loan  on  a  less  amount  than  the  mortgage,  he  may, 
especially  where  the  assignee  refuses  to  proceed,  file  a  bill  of 
foreclosure  in  his  own  name,  {k)  The  assignee  also  has  the 
right  to  file  a  bill  in  such  a  case,  if  he  chooses.  (J) 

An  assignee,  who  took  an  assignment  merely  as  a  security 
for  a  debt,  which  has  been  paid,  cannot  maintain  a  bill  of 
foreclosure,  {m) 

Defendants. — All  persons  having  an  interest  in  the  equity 
of  redemption  should  be  made  defendants  to  a  bill  of  fore- 
closure, {n)  And  if  the  equity  of  redemption  belongs  to  differ- 
ent persons  as  devisees,  or  as  having  charges  as  legatees,  thereon, 
all  of  them  should  be  joined  as  defendants,  (o)  And  hence  the 
general,  though  not  universal,  rule  is  that  all  encumbrancers 
should  be  made  parties,  if  not  indispensable,  at  least  .as  proper 
parties  to  such  a  bill,  whether  they  are  prior  or  subsequent  in- 
cumbrancers, {p) 

The  mortgagor,  unless  he  has  assigned  the  equity  of  redemp- 
tion, is  an  indispensable  party,  and  if  he  has  died  without 
transferring  or  devising  the  equity  of  redemption,  the  heir 
then  becomes  a  necessary  party,  and  no  decree  can  be  entered 
until  the  heirs  are  before  the  court,  {q) 

The  wife  of  the  mortgagor,  who  has  joined  in  the  execution 

(r)  Roath  vs.  Smith,  5  Conn.  133 ;  Freake  vs.  Horsley,  2  Freem.  180;  Brad- 
shaiv  vs.  Outram,  13  Ves.  234;  Griffin  vs.  Lovell,  42  Miss.  403. 

ij)    Whitney  vs.  McKenneij,  7  Johns.  Ch.  144;  Hahn  vs.  Ruber,  83  111.  243. 
(k)    Norton  vs.  Warren,  3  Edw.  106. 

(0    lb. 

{m)  Wilbur  vs.  Almij,  12  How.  U.  S.  180. 

{n)  Story's  Eq.  PL  §  182,  193;  Hoxie  vs.  Carr,  1  Sum.  173;  Slade  vs. 
Biggs,  3  Hare,  35;  Coles  vs.  Forrest,  10  Beav.  552;  Montgomery  vs.  Brown, 
S  Gilm.  581;  Mulvey  vs.  Gibbons,  87  111.  367. 

(o)    McGoivn  vs.  Yurks,  6  Johns.  Ch.  450. 

(;>)  Haines  vs.  Beach,  3  Johns.  Ch.  459;  Ensworth  vs.  Lambert,  4  lb.  605; 
Culhim  vs.  Batre,  2  Ala.  415 ;  Finley  vs.  Bank  of  U.  S.,  11  Wheat.  304;  Walsh 
vs.  Truesdall,  1  Bradwell's  App.  Ct.  R.  126. 

{q)  Lane  vs.  Erskine,  13  111.  501;  Harvey  vs.  Thornton,  14  111.  217;  Marsh 
vs.  Green,  79  111.  385. 


374  BILLS   TO   FORECLOSE   MOKTGAGES. 

Parties  to  —  Defendants. 

of  the  mortgage,  is  a  necessary  party  to  a  proceeding  in  equity 
to  a  foreclosure,  (r)  But  upon  a  foreclosure  of  a  mortgage  given 
to  secure  the  purchase  money  for  the  mortgaged  premises,  it  is 
not  necessary  that  the  wife  of  the  mortgagor  should  be  made  a 
party  to  the  bill,  {s) 

A  purchaser  of  land  from  a  devisee  is  a  necessary  party  to  a 
bill  for  the  foreclosure  of  a  mortgage,  which  had  previously 
been  given  upon  the  same  premises  by  the  testator,  [t) 

Where  three  notes,  payable  at  different  times,  were  secured  by 
a  mortgage,  and  the  iirst  and  second  notes  were  assigned  to  one 
person,  and  the  third  note  to  another,  it  was  held  that  on  a  bill 
to  foreclose  the  mortgage  by  the  holder  of  the  first  and  second 
notes,  the  holder  of  the  third  note  was  a  necessary  party,  (w) 

A  mortgagor  who  is  personally  liable  to  the  mortgagee  for 
the  payment  of  the  debt  secured  by  the  mortgage,  but  who  has 
parted  with  all  his  rights  and  interest  in  the  mortgaged  prem- 
ises, is  a  proper,  but  not  a  necessary  party  to  a  bill  to  foreclose 
the  mortgage,  {v) 

If  the  mortgagor  has  conveyed  the  equity  of  redemption 
absolutely  and  without  warranty,  the  mortgaged  premises  are 
the  primary  fund  for  the  payment  of  the  mortgage  debt ;  and 
the  grantee  has  no  right  to  object  that  the  mortgagor  is  not 
made  a  party  to  the  bill  of  foreclosure.  But  where  the  com- 
plainant makes  a  mere  surety  of  the  moi'tgagor,  for  the  payment 
of  the  debt,  a  party  to  the  bill,  for  the  purpose  of  obtaining  a 
decree  against  such  surety,  if  the  mortgaged  premises  are  found 
to  be  insufficient  to  satisfy  the  debt  and  costs,  such  surety  has 
a  right  to  insist  that  the  principal  debtor  shall  be  made  a  party 
to  the  suit,  if  he  is  within  the  jurisdiction  of  the  court.  But 
not  if  the  principal  debtor  is  an  absentee,  and  has  assigned  all 
his  right  and  interest  in  the  equity  of  redemption,  {w) 

(r)  Leonard  vs.  ViUars,  23  111.  377;  Wright  vs.  Lnnqley,  36  111.  381;  see 
Pope  vs.  North,  33  III.  440. 

(s)  Stephens  vs.  Bichnell,  27  111.  444;  Short  vs.  Rnuh,  81  111.  509;  Fletcher 
vs.  HolmcN.  32  Ind.  497. 

it)  Ohlingv^.  Luitjens,  32  111.23;  Dunlap  vs.  Wilson,  Ih.  511;  Cuttervs. 
Jone.'^,  52  III.  84. 

(m)    Mi/ers  vs.  Wright,  33  111.  285. 

(r)    Bigelow  vs.  Bush,  6  Paige,  Ch.  343;  Marsh  vs.  Green,  79  III.  385. 

{w)  2  Barb.  Ch.  Pr.  175;  Bigelow  vs.  Bush,  6  Paige,  Ch.  R.  343. 


BILLS   TO   FOKECLOSE  MOKTGAGES.  375 

Parties  to  —  Defendants  —  Frame  of  Bill. 

Where  the  mortgagee  has  assigned  his  bond  and  mortgage, 
and  guaranteed  the  collection  of  the  debt,  the  assignee  may  make 
him  a  party  to  the  bill  of  foreclosure ;  foi-  tlie  purpose  of  obtain- 
ing a  decree  over  against  him  for  the  deficiency,  in  case  the 
amount  of  such  deficiency  should  not  be  collected  from  the 
mortgagor,  {x) 

If  a  mortgage  is  foreclosed  without  making  subsequent  pur- 
chasers or  incumbrancers  parties,  their  rights  to  redeem  are 
not  affected  thereby,  (y) 

To  a  bill  to  foreclose  against  the  principal  mortgagor,  the 
mortgagor  of  another  estate,  as  a  collateral  security,  is  a  neces- 
sary party,  (s) 


SECTION  IV.  , 

FRAME    OF    BILL. 

It  is  proper  to  remark,  by  way  of  caution  to  the  pleader,  that 
much  diversity  exists  in  the  cases  with  regard  to  foreclosure 
enits,  since,  in  most  of  the  states,  there  are  statutes  upon  the 
subject,  and  a  line  of  decisions  peculiar  to  the  state. 

The  title  in  the  mortgagor  need  not  be  averred  in  the  bill,  (a) 
In  New  York,  it  seems  that  the  bill  must  allege  that  no 
proceedings  at  law  have  been  had  to  recover  the  debt,  or  if 
there  have  been  such  proceedings,  he  must  state  the  natnre  of 
them,  and  that  they  have  been  discontinued,  or  that  the  remedy 
at  law  has  been  exhausted  ;  (J)  this  is  a  statutory  provision,  (c) 
A  similar  statute  seems  to  exist  in  Indiana.  Where  it  was 
held  that  an  omission  of  such  a  statement  is  fatal,  (d) 

(cr)    Leonard  vs.  Morris,  9  Paige,  Ch.  90. 

(y)  Dunlap  vs.  Wilson,  32  111.  517  ;  Oorden  xs.Hobart,  2  Sum.  402 ;  Oliver 
VB.  Piatt,  3  How.  U.  S.  333. 

(2)    Stokrs  vs.  Clcndon,  3  Swaust.  150,  note  ;  S.  G.  2  Bro.  Ch.  Ca.  275,  note. 

(o)  Shed  vs.  Garfield,  5  Vt.  39 ;  Eaci/ie  ct  Miss.  R.  R.  Co.  vs.  Farmer's 
Loan  &  Trust  Co.  49  111.  331. 

(6)  Pattison  vs.  Poicers,  4  Paige,  Cli.  549  ;  Williamson  vs.  Champlin  1 
Clarke,  9. 

(c)  2  Barb.  Ch.  Pr.  178. 

(d)  McMullen  vs.  Furness,  1  Smith,  73. 


376  BILLS  TO   FORECLOSE   MORTGAGES. 

Frame  of  Bill  —  Form  of  Bill,  Mortgagee  vs.  Mortgagor. 

In  Illinois,  it  is  held  that  a  judgment  on  a  note,  secured  by 
mortgage,  which  remains  unsatisfied  is  no  bar  to  a  proceeding 
to  foreclose,  or  that  a  mortgagee  may  bring  ejectment,  sue  on 
the  note  at  law,  and  maintain  a  bill  to  foreclose,  at  the  same 
time ;  that  he  may  pursue  the  several  remedies  until  his  debt 
is  satisfied,  (e) 

The  bill  need  not  allege  an  indebtedness  for  which  it  was 
given  ;  and  if  alleged,  it  need  not  be  proved,  {f) 

In  bills  to  foreclose,  it  is  not  necessary  to  set  out  at  length 
the  rights  and  interests  of  the  defendants  who  are  subsequent 
purchasers,  judgment  creditors  or  other  incumbrancers.  It  is 
BuflBcient  for  the  complainant,  after  setting  out  his  own  right 
and  interest  in  the  premises,  to  state  generally  that  such  de- 
fendants have,  or  claim  to  have,  some  interest  in  the  premises, 
as  subsequent  purchasers  or  incumbrancers  or  otherwise,  (g) 
And  it  has  been  held  that  where  the  bill  unnecessarily  sets 
out  tlie  rights  of  the  several  defendants  at  length,  it  may  be 
excepted  to  for  impertinence.  (A) 

In  a  bill  in  chancery  to  foreclose  a  mortgage  claimed  to  have 
been  executed  by  husband  and  wife  upon  land  the  fee  of  which 
was  in  the  latter,  the  mortgage  may  be  stated  according  to  its 
legal  efiect,  without  stating  in  detail  the  various  matters  which 
are  necessary  to  a  transfer  of  a  married  woman's  title,  [i) 

No.  139.     Bill  for  foreclosure  of  mortgage  /  moi^tgagee 
vs.  mortgagor. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  C  D.,  of  etc.,  being  indebted  to  your 
orator  in  the  sum  of dollars,  made  and  delivered  to  your 


(e)  Vansant  vs.  Allmon,  23  111.  30;  Hughes  vs.  Edwards,  9  Wheat.  489; 
Morrison  vs.  Buckner,  Hemp.  442 ;  see  also  Morgan  vs.  Sherwood,  53  111.  171. 

(/)  Day  vs.  Perkins,  2  Sandf.  Cli.  359  ;  see  also  Collins  vs.  Carlile,  13 
ni.  254. 

{g)    2  Barb.  Cli.  Pr.  177. 

{h)    lb. ;  Union  Ins.  Co.  vs.  Van  lienssctaer,  4  Paige,  Ch.  85. 

(t)    Williams  vs.  Soulier,  55  111.  130. 


BILLS   TO   FOKECLOSE   MORTGAGES.  377 

Form  of  Bill,  Mortgagee  vs.  Mortgagor. 

orator  liis  certain  promiBSory  note  of  that  date,  and  thereby 

promised  to  pay  to  your  orator, after  date,  the  said  sum 

of dollars,   with  interest  at  the  rate  of — per  cent,  per 

annum,  as  will  more  fully  appear  by  the  said  note,  ready  to  be 
produced  in  court,  and  by  the  copy  of  the  same  herewith  filed 
and  marked  ''Exhibit  A,"  and  made  part  of  this  your  orator's 
bill  of  complaint. 

Your  orator  further  represents  unto  your  honor,  that  to 
secure  the  payment  of  the  principal  sum  and  interest  above 
mentioned,  the  said  C  D.  and  D.  D.,  his  wife,  on,  etc.,  by 
their  deed  of  that  date,  conveyed  to  your  orator,  in  fee  simple, 
the  following  described  parcel  of  land,  with  its  appurtenances, 

situate  in  the  said  county  of ,  to  wit:  {Here  descrihe  the 

preinises  j)  subject,  however,  to  a  condition  of  defeasance  upon 
the  payment  of  the  principal  sum  and  interest  aforesaid, 
according  to  the  tenor  and  effect  of  the  said  promissory  note ; 
which  said  deed  was,  on,  etc.,  duly  acknowledged,  and  after- 
ward, on,  etc.,  filed  for  record  in  the  recorder's  office  of  the 
county  of aforesaid,  as  by  the  said  deed  and  its  accom- 
panying certificates  of  acknowledgment  and  recording,  ready 
to  be  produced  in  court,  and  by  a  copy  thereof  herewith  filed 
and  marked  "  Exhibit  B,"  and  made  a  part  of  this  bill,  will 
more  fully  appear. 

Your  orator  further  represents  unto  your  honor,  that  the  said 

C.  D.  has  not  yet  paid  the  said  principal  sum  of dollars, 

or  such  interest  thereon,  or  any  part  thereof,  although  the  same 
long  since  became  due  ;  by  means  whereof  the  said  mortgaged 
property  has  become  forfeited,  subject  nevertheless  to  redemp- 
tion in  equity  by  the  said  C.  D.,  his  heirs  and  assigns. 

Your  orator  further  represents  unto  your  honor,  upon  infor- 
mation and  belief,  that  E.  F.  and  G.  H.,  of,  etc.,  have,  or  claim, 
some  interest  (the  precise  nature  whereof  is  unknown  to  your 
orator)  in  the  mortgaged  premises  aforesaid,  as  purchasers, 
mortgagees,  judgment  creditors,  or  otherwise,  but  such  inter- 
ests, if  any  there  be,  have  accrued  since,  and  are  subject  to,  the 
lien  of  your  orator,  by  virtue  of  the  said  deed  of  mortgage. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity,  and  to  the  end  that 
the  said  C.  D.,  D.  D.,  E.  F.  and  G.  H.,  who  are  made  ]:)arties 
defendant  to  this  bill,  may  be  required  to  make  full  and  direct 
answer  to  the  same,  hut  not  under  oath,  the  ansiver  under  oath 
heiyig  hereby  loaived  j  that  an  account  may  be  taken  in  this 
behalf,  by  or  under  the  direction  of  the  court ;  that  the  said 
defendant,  C.  D.,  may  be  decreed  to  pay  to  your  orator,  wliat- 
ever  sum  shall  appear  to  be  due  to  him  upon  the  taking  of 


378  BILLS   TO    FORECLOSE   MORTGAGES. 

Form  of  Bill,  by  Assignee  of  Mortgage. 

sneli  acconnt,  too'etlier  with  the  costs  of  this  proceeding,  by  a 
short  day  to  be  fixed  by  the  court ;  that  in  default  of  such  pay- 
ment the  said  mortgaged  premises  may  be  sold,  as  the  court 
may  direct,  to  patisfy  such  debt  and  costs ;  that  in  case  of  such 
sale  and  of  a  failure  to  redeem  therefrom  pursuant  to  the  stat- 
ute, the  defendants,  and  all  persons  claiming  through  or  under 
them,  after  the  commencement  of  this  suit,  may  be  forever 
barred  and  foreclosed  of  all  right  or  equity  of  redemption  of 
the  said  mortgaged  property ;  and  that  your  orator  may  have 
such  other  and  further  relief  in  the  premises  as  equity  may 
require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sheriff  of  the  said  county  of , 

commanding  him,  that  he  summon  the  said  defendants,  C.  D., 
D.  D.,  E.  F.  and  G.  H.,  to  appear  before  the  said  court,  on  the 

first  day  of  the  next term  thereof,  to  be  held  at  the  court 

house  in ,  in  the  county  of aforesaid,  and  then  and 

there  to  answer  this  bill,  etc. 

Sol.  for  the  Com/plainant. 

{Add  copies  of  note  and  mortgage  as  Exhibits  A  and  JB.) 

J4-0.     Bill  for  foreclosure.,  hy  assignee  of  mortgage. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  C.  D.,  of,  etc.,  being  indebted  to  one  E.  F., 

of,  etc.,  in  the  sum  of dollars,  made  and  delivered  to  the 

said  E.  F.  his  certain  promissory  note  of  that  date,  and  thereby 

promised  to  pay  to  the  order  of  the  said  E.  F., after  date, 

the  said  sum  of dollars,  with  interest  at  the  rate  of 

per  cent,  per  annum ;  as  will  more  fully  appear  by  the  said 
note,  ready  to  be  produced  in  court,  and  by  the  copy  of  the 
same  herewith  filed,  marked  "  Exhibit  A,"  and  made  part  of 
this  your  orator's  bill  of  complaint.  And  the  said  C.  D.,  to 
secure  the  payment  of  the  principal  and  interest,  mentioned  in 
the  said  promissory  note,  did,  at  the  same  time,  by  his  mort- 
gage deed  of  that  date,  convey  to  the  said  E.  F.,  in  fee  simple, 
that  certain  parcel  of  land,  with  the  appurtenances,  in  the  said 

county  of ,  described  as  follows,  to  wit :  {Here  set  out  the 

description  of  the  mortgaged  property ;)  subject,  however,  to  a 
condition  of  defeasance  upon  the  payment  of  the  principal  sum 
and  interest  aforesaid,  according  to  the  tenor  and  effect  of  the 
said  promissory  note ;  which  said  mortgage  deed  was  on,  etc., 


BILLS   TO   FORECLOSE   MORTGAGES.  379 

Form  of  Bill,  by  Assignee  of  Mortgage. 


duly  acknowledged,  and  afterwards,  on,  etc.,  fled  for  record  in 
the  recorder's,  office  of  said  county;  as  by  the  said  mortgage 
deed  and  its  accompanying  certiiicates  of  acknowledgment, 
and  recording,  ready  to  be  produced  in  court,  and  by  the  copy 
of  the  same  herewith  filed,  marked  "  Exhibit  B,"  and  made 
a  part  of  this  bill,  will  more  fully  appear. 

And  your  orator  further  represents  unto  your  honor,  that  the 
said  promissory  note  and  mortgage  deed  have  been  duly  assigned 
and  transferred  to  your  orator  for  a  valuable  consideration,  and 
are  now  held  and  owned  by  your  orator. 

And  your  orator  further  represents  unto  your  honor,  that  the 

said  principal  sum  of dollars,  with  interest  thereon  from, 

etc.,  remains  due  and  unpaid  to  your  orator,  although  the  same 
long  since  became  due ;  by  means  whereof  the  said  mortgaged 
property  has  become  forfeited,  subject,  nevertheless,  to  redemp- 
tion in  equity  by  the  said  C.  D.,  his  heirs  or  assigns. 

And  your  orator  is  informed  and  believes,  and  so  states,  that 
G.  H.  and  J.  K.,  of,  etc.,  have,  or  claim,  some  interests  in  the 
said  mortgaged  premises,  or  in  some  part  thereof,  as  purchasers, 
mortgagees,  judgment  creditors,  or  otherwise,  which  interests, 
if  any  there  be,  have  accrued  subsequent  to  the  lien  of  said 
mortgage  deed,  and  are  subject  thereto. 

Your  orator  therefore  asks  the  aid  of  this  honorable  court 
in  the  premises ;  and  makes  the  said  C.  D.,  G.  H.  and  J.  K. 
parties  defendant  to  this  bill,  and  to  the  end  that  they  may  be 
required  to  answer  this,  your  orator's  bill,  according  to  the 
rules  and  practice  of  this  honorable  court,  hid  not  under  oath, 
their  answer  under  oath  heing  herehy  waived',  that  an  account 
may  be  taken  in  this  behalf  liy  or  under  the  direction  of  the 
court ;  that  the  said  defendant,  C.  D.,  may  be  decreed  to  pay 
your  orator  whatever  sum  shall  appear  to  be  due  him  upon 
the  taking  of  such  account,  together  with  his  costs  of  this  pro- 
ceeding, by  a  short  day  to  be  fixed  by  the  court ;  that,  in  default 
of  such  payment,  the  said  mortgaged  propei'ty  may  be  sold,  as 
may  be  directed  by  the  court,  to  satisfy  the  amount  due  and 
costs;  that,  in  case  of  such  sale,  and  a  failure  to  redeem  there- 
from, pursuant  to  the  statute,  the  defendants,  and  all  persons 
claiming  through  or  under  them,  subsequent  to  the  commence- 
ment of  this  suit,  may  be  forever  barred  and  foreclosed  of  all 
right  and  equity  of  redemption  in  the  said  premises ;  and  that 
your  orator  may  have  such  other  and  further  relief  in  the 
premises  as  equity  may  require  and  to  your  honor  may  seem 
meet. 

And  may  it  please  your  honor  to  grant  the  writ  of  summons 
in  chancery,  directed  to  the  sheriff  of  said  county,  commanding 


380  BILLS   TO   FORECLOSE   MORTGAGES. 

Form  of  Bill,  by  Mortgagee  V8.  Executor,  etc. 

him  that  he  summon  the  defendants,  C.  D.,  G.  H.  and  J.  K., 

to  appear  before  this  honorable  court,  on  the  first  day  of  the 

next term  thereof,  to  be  held  at  the  court  house  in , 

in  the  said  county,  then  and  there  to  answer  this  bill,  etc. 

— ,  Sol.  for  Complainant. 

{Add  exhibits.) 

Mo.  lJi.1.    Bill  for  foreclosure,  hy  mortgagee  vs.  executor,  etc., 
of  deceased  mortgagor. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  one  E.  F.,  late  of,  etc.,  being  indebted  to 

your  orator  in  the  sum  of dollars,  made  ftnd  delivered  to 

your  orator  his  two  certain  promissory  notes  of  that  date,  one 

of  the  same  being  for  the  sum  of dollars,  and  payable  to  your 

orator afterdate,  and  the  other  for  the  sum  of dollars, 

payable after  date,  both  of  said  notes  to  draw interest 

per  annum  from  their  date,  as  will  more  fully  appear  by  the 
said  notes,  ready  to  be  produced  in  court,  and  by  the  copies 
of  the  same  herewith  filed,  marked  "  Exhibit  A,"  and  made 
part  of  this  your  orator's  bill  of  complaint. 

Your  orator  further  represents  unto  your  honor,  that  to 
secure  the  payment  of  the  principal  sums  and  interest  above 
mentioned,  the  said  E.  F.  and  F.  F.,  his  wife,  on  the  same  day, 
by  their  mortgage  deed  of  that  date,  conveyed  to  your  orator, 
in  fee  simple,  that  certain  parcel  of  land,  with  its  appurtenances, 

in  the  said  county  of ,  known  and  described  as  follows,  to 

wit :  {Here  set  out  the  description  /)  subject,  however,  to  a  con- 
dition of  defeasance  upon  the  payment  of  the  principal  sums 
and  interest  aforesaid,  according  to  the  tenor  and  effect  of  the 
said  promissory  notes ;  which  said  mortgage  deed  was  on,  etc., 
duly  acknowledged,  and  afterwards,  on,  etc.,  filed  for  record  in 

the  ofHce  of  the  recorder  of  the  said  county  of ,  as  by  the 

said  mortgage  deed  and  its  accompanying  certificates,  ready  to 
be  produced  in  court,  a  copy  of  which,  marked  "  Exhibit  B," 
is  hereto  attached,  and  made  a  part  of  this  bill,  will  more  fully 
appear.  (*) 

Your  orator  further  represents,  that  afterwards,  to  wit,  on, 
etc.,  the  said  E.  F.  departed  this  life,  leaving  the  said  F.  F.,  his 
widow,  and  G.  F.,  H.  F.  and  J.  F.,  his  children,  who  are  minors 
and  his  only  heirs  at  law,  him  surviving;  that  the  said  E.  F.,  in 
his  lifetime,  duly  made  and  published  his  last  will  and  testa 


BILLS   TO   FORECLOSE  MORTGAGES.  381 

Form  of  Bill,  by  Mortgagee  vs.  Executor,  etc. 

ment  in  writing,  bearing  date,  etc.,  by  wliieli  one  L.  M.  was 
appointed  to  be  tlie  executor  of  the  said  will  ;  that  upon,  or 
soon  after,  the  death  of  the  said  E.  F.,  the  said  L.  M.  duly  proved 
the  said  will  in  the —  court  of  the  county  of,  etc.,  and  under- 
took the  executorship  thereof.  (*  *) 

Your  orator  further  represents  unto  your  honor,  that  the  said 

principal  sums  of  money,  with  interest  from  the day  of, 

etc.,  remain  due  and  unpaid  to  your  orator,  although  the  same 
long  since  became  due,  according  to  the  tenor  and  effect  of  the 
said  promissory  notes ;  by  means  whereof  the  said  mortgaged 
property  has  become  forfeited,  subject,  nevertheless,  to  an  equity 
of  redemption  by  the  said  legal  representatives  of  the  said  E.  F., 
deceased,  or  his  heirs  or  assigns. 

Your  orator  further  represents,  upon  information  and  belief, 
that  O.  P.  and  E..  S.,  of,  etc.,  have  or  claim  some  interests  in  the 
mortgaged  property  aforesaid,  as  purchasers,  mortgagees,  trus- 
tees, judgment  creditors,  or  otherwise,  the  precise  nature  of 
which  is  unknown  to  your  orator,  but  such  interests,  if  any 
there  be,  have  accrued  since,  and  are  subject  to  the  lien  of  your 
orator,  by  virtue  of  said  mortgage  deed. 

Your  orator  therefore  asks  the  aid  of  this  honorable  court 
in  the  premises,  and  makes  the  said  F.  F.,  G.  F.,  H.  F.,  J.  F. 
and  L.  M.,  executor  of  the  last  will  and  testament  of  the  said 
E.  F.,  deceased,  and  O.  P.  and  P.  S.,  parties  defendant  to  this 
bill,  to  the  end  that  they  may  be  required  to  answer  this  your 
orator's  bill,  according  to  the  rules  and  practice  of  this  honor- 
able court,  hut  not  U7ider  oath,  the  answer  under  oath  heing 
hereby  waived:  that. a  guardian  ad  litem  may  be  appointed 
for  said  minor  neirs ;  and  that  an  account  may  be  taken  in  this 
behalf  by  or  under  the  direction  of  the  court ;  that  the  said 
defendant  may  be  decreed  to  pay  your  orator  whatever  sum 
shall  appear  to  be  due  him  upon  the  taking  of  such  account, 
together  with  his  costs  of  this  proceeding,  by  a  short  day  to 
be  fixed  by  the  court ;  that  in  default  of  such  payment  the 
said  mortgaged  property  may  be  sold,  as  may  be  directed  by 
the  court,  to  satisfy  the  amount  due  and  costs ;  that  in  case  of 
such  sale  and  a  failui-e  to  redeem  therefrom,  pursuant  to  the 
statute,  the  defendants,  and  all  persons  claiming  through  or 
under  them,  subsequent  to  the  commencement  of  this  suit^ 
may  be  forever  barred  and  foreclosed  of  all  right  and  equity 
of  redemption  in  the  said  premises ;  and  that  your  orator  may 
have  such  other  and  further  relief  in  the  premises  as  equity 
may  require,  and  to  your  honor  may  seem  meet. 

And  may  it  please  your  honor  to  grant  the  writ  of  summons 
in  chancery,  directed  to  the  sheritf  of  said  county,  command- 


382  BILLS   TO   FORECLOSE   MORTGAGES. 

Form  of  Bill,  by  Mortgagee  vs.  Administrator,  etc.  —  Trust  Deed,  etc. 

inghim  that  he  summon  the  defendants  al)ove  named  to  appear 

before  this  honorable  court  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house,  in  ,  in  the 

county  aforesaid,  then  and  there  to  answer  this  bill,  etc. 

,  Sol.  for  Complainant. 

(Attach  Exhibits  A  and  B.) 

JVo.  IJfS.    Bill  for  foreclosure,  hy  mortgagee  vs.  administrator  ^ 
etc.,  of  mortgagor. 

{Commence  and  proceed  as  in  No.  11^1,  ante,  to  the  asterisk  *, 
and  then  proceed  as  follows :) 

Your  orator  further  represents  unto  your  honor,  that  after- 
wards, on  or  about  the day  of ,  18 — ,  the  said  E.  F. 

departed  this  life  intestate,  leaving  the  said  F.  F.,  his  widow, 
and  G.  F.,  H.  F.  and  J.  F.,  his  minor  children,  and  his  only 
heirs  at  law,  him  surviving ;  that  soon  after  the  death  of  the 

said  E.  F.,  K.  M.,  of,  etc.,  was,  by  the court  of  the  said 

county  of ,  duly  appointed  administrator  of  the  goods  and 

chattels,  etc.,  of  the  said  E.  F.,  deceased.  {Then proceed  as  in 
the  same  form,  No.  IJ^l,  from  the  double  asterisk,  describing 
the  said  H.  S.  as  "  administrator  of  the  estate  of  the  said 
E.  F.,  deceased^''  instead  of  as  executor,  etc.) 


SECTION  V. 
TKUST  DEEDS  AND  SALE  M0ETGAGE8. 

The  act  of  1879  provides 

"That  no  real  estate  within  this  state  shall  be  sold  by  virtue 
of  any  power  of  sale  contained  in  any  mortgage,  trust  deed  or 
other  conveyance  in  the  nature  of  a  mortgage,  executed  after 
the  taking  effect  of  this  act ;  but  all  such  mortgages,  trust  deeds, 
or  other  conveyances  in  the  nature  of  a  mortgage,  shall  only 
De  foreclosed  in  the  manner  provided  for  foreclosing  mortgages 
containing  Jio  power  of  sale;  and  no  real  estate  shall  be  sold  to 
satisfy  any  such  mortgage,  trust  deed,  or  other  conveyance  in. 
the  nature  of  a  mortgage,  except  in  pursuance  of  a  judgment 
or  decree  of  a  court  of  competent  jurisdiction."  {j) 

ij)   Laws  of  111.  1879.  pp.  211,  Bradwell's  ed.  162 


BILLS   TO   FORECLOSE   MORTGAGES.  383 

Form  of  Bill  to  Foreclose  Trust  Deed,  etc. 

No.  lJt3.     Bill  to  foreclose  deed  of  trust  inUie  nature  of  a 

w.orUjage. 

To  the  Honorable ,  J  lul^e  of  the Court  of  tlie  Couutj 

of ,  in  the  State  of  — — , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  one  C.  D.,  late  of,  etc.,  being  indebted  to 

your  orator  in  the  sum  of dollars,  made  and  delivered  to 

your  orator  his  certain  promissory  note  of  that  date,  and  there- 
by promised  to  pay  your  orator  the  said  sum  of  money  in 

years  after  the  date  thereof,  with  interest  thereon  at  the  rate 

of — per   cent,   per  annum,  payable ;  as  will  appear  by 

the  said  note,  ready  to  be  produced  in  court,  and  by  the  copy 
of  the  same  hereto  attached,  marked  "  Exhibit  A,"  and  made 
a  part  of  this  your  orator's  bill  of  complaint. 

Your  orator  further  represents,  that  to  secure  the  payment 
of  the  principal  sum  and  interest  above  mentioned,  the  said 
C.  D.  and  D.  D.,  his  wife,  on,  etc.,  by  their  deed  of  trust  of 
that  date,  conveyed  to  one  E.  F.  in  fee  simple,  the  follow^ing 
described  real  property,  with  the  appurtenances  thereto  belong- 
ing, to  wit :  {Here  describe  the  'premises  f)  in  trust,  nevertheless, 
for  the  purposes  of  securing  the  principal  sum  and  interest  so 
due  your  orator  as  aforesaid,  and  subject  to  a  condition  of 
defeasance  upon  the  payment  of  the  said  principal  sum  and 
interest,  according  to  the  tenor  and  effect  of  the  said  note ; 
which  said  deed  of  trust  was,  on,  etc.,  duly  acknowledged,  and 
afterwards,  on,  etc.,  filed  for  record  in  the  recorder's  office  of 

the  county  of aforesaid ;  as  by  the  said  deed  of  trust  and 

its  accompanying  certificates  of  acknowledgment  and  recording, 
ready  to  be  produced  in  court,  will  mure  fully  appear ;  a  copy 
of  the  same  is  hereto  attached,  marked  "Exhibit  B,"  and  is 
hereby  made  a  part  of  this  bill  of  complaint. 

Your  orator  further  represents,  that  on,  etc.,  the  said  C.  D. 

^departed  this  life,  intestate  leaving  the  said  D.  D.,  his  widow, 

and  E.  D.  and  F.  D.,  his  children  and  only  heirs  at  law ;  that 

afterwards,  on,  etc.,  one  G.  H.,  of,  etc.,  was  by  the court 

of  the  county  of aforesaid,  duly  appointed  administrator 

of  the  estate  of  the  said  C.  D.,  deceased ;  and  that  the  said 
G.  H.  entered  upon  and  assumed  the  duties  of  such  adminis- 
tration. 

Your  orator  further  represents,  that  the  said  C.  D.  was  at  the 
time  of  his  decease,  the  owner  of  the  equity  of  redemption  of 
the  said  described  premises. 


384  BILLS   TO   FORECLOSE   MORTGAGES. 

Bill  to  Foreclose  Trust  Deed,  etc.  —  Strict  Foreclosure. 

Your  orator  further  represents,  that  the  said  C.  D.  did  not, 
in  his  lifetime,  aor  has  any  person  since  his  death,  paid  the 

said  principal  sum  of dollars,  or  such  interest  thereon,  nor 

any  part  of  the  same,  although  the  same  has  long  since  become 
due ;  by  means  whereof  the  said  premises  so  conveyed  has  be- 
come forfeited,  subject,  nevertheless,  to  redemption  in  equity 
by  the  representatives  and  heirs  of  the  said  C  D.,  deceased. 

Your  orator  further  represents,  that  by  reason  of  the  statute  in 
such  case  made  and  provided,  the  said  E.  F.,  as  such  trustee 
in  the  said  trust  deed  named,  is  divested  of  his  authority  to 
make  sale  of  the  said  premises  in  the  manner  provided  therein. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  D.  D.,  E.  D.,  F.  D.,  E.  F.  and  G.  H.,  administrator  of 
the  estate  of  the  said  C.  D.,  deceased,  who  are  made  parties 
defendant  to  this  bill,  may  be  required  to  make  full  and  direct 
answer  to  the  same,  h^it  not  under  oath,  the  answer  under  oath 
heing  hereby  waived ;  that  an  account  may  be  taken  in  this 
behalf,  by  or  under  the  direction  of  this  honorable  court ;  that 
the  defendants,  or  some  of  them,  may  be  decreed  to  pay  to  your 
orator  whatever  sum  shall  appear  to  be  due  to  him  upon  the 
taking  of  the  said  account,  together  with  his  costs  of  this  pro- 
ceeding, by  a  short  day  to  be  fixed  by  the  court ;  that  in  default 
of  such  payment  the  said  premises  may  be  sold,  as  the  court 
shall  direct,  to  satisfy  the  amount  due  your  orator  and  the  costs ; 
that  in  case  of  such  sale,  and  of  a  failure  to  redeem  therefrom 
pursuant  to  law,  the  defendants,  and  all  persons  claiming 
through  or  under  them,  after  the  commencement  of  this  pro- 
ceeding, may  be  forever  barred  and  foreclosed  of  all  right  or 
equity  of  redemption  of  the  said  mortgaged  property ;  and 
that  your  orator  may  have  such  other  and  further  relief  in  the 
premises  as  equity  may  require  and  to  your  honor  shall  seem 
meet. 

May  it  please,  etc.  {Pray  process  as  in  No.  lJt.1,  ante,  j>age 
380.) 


SECTION  VI. 
STKICT   FORECLOSUEE. 

The  object  of  a  bill  for  strict  foreclosure  is  to  obtain  a  decree 
for  the  payment  of  the  mortgage  debt  within  a  short  period  to  be 
fixed  by  the  court ;  or  that,  in  default  thereof,  the  mortgagor, 
and  all  persons  claiming  under  him,  may  be  barred  and  fore- 


BILLS   TO   FORECLOSE   MORTGAGES.  385 

Strict  Foreclosure  —  Parties  to. 

closed  of  all  rights  and  equity  of  redemption  in  the  mortgaged 
premises,  and  his  and  their  title  thereto  be  extinguished  and 
vested  in  the  mortgagee,  witliout  a  sale  thereof. 

Where  a  bill  foi  a  foreclosure  shows  that  the  mortgage  was 
given  for  the  entire  purchase  money,  no  part  of  which  or  the 
interest  had  been  paid,  that  the  value  of  the  premises  does  not 
exceed  the  amount  due,  and  that  they  are  but  a  slender  and  the 
only  security  for  the  debt,  the  mortgagor  having  absconded,  a 
strict  foreclosure  is  not  improper,  (k) 

A  strict  foreclosure  is  not,  as  a  general  rule,  proper  where 
there  are  other  incumbrances  on  the  property,  or  creditors,  or 
purchasers  of  the  equity  of  redemption,  (l) 

If  it  does  not  appear  that  the  mortgagor  is  insolvent,  or  that 
the  mortgaged  premises  are  not  of  sufficient  value  to  pay  the 
debt  and  costs,  a  strict  foreclosure  will  not  be  decreed,  (m) 

A  strict  foreclosure  of  a  mortgage  does  not  extinguish  the 
debt,  unless  the  value  of  the  land  is  equivalent  to  the  amount 
of  the  indebtedness,  (n) 

Parties  to. — The  parties  to  a  bill  for  strict  foreclosure,  are, 
in  general,  the  same  as  to  a  bill  for  foreclosure  and  sale.  The 
complainant  should  bring  before  the  court  all  persons  who  have 
a  right  to  redeem  the  premises,  and  all  persons  claiming  an 
interest  in  the  mortgage  under  himself.  Therefore,  if  there 
are  several  derivative  mortgagees,  they  must  all  be  made 
parties,  {p) 

A  strict  foreclosure  cannot  be  entered  where  there  are  cred- 
itors entitled  to  the  surplus,  who  are  not  made  parties  to  the 
suit,  {p) 

(k)  Wilson  vs.  Geisler,  19  111.  49. 

(l)  Farrell  vs.  Parlier,  50  111.  270 ;  see  Johnson  vs.  Donnell,  15  111.  97 ; 
Wener  vs.  Heintz,  17  111.  259 ;  Stevens  vs.  Bichnell,  27  111.  444 ;  Horner  vs. 
Zimmerman,  45  111.  14. 

(m)  Sheldon  vs.  Patterson,  55  111.  507. 

{n)  Vansant  vs.  Allmon,  23  111.  31 ;  4  Kent,  Com.  182  but  see  Savory  vb, 
Wissman,  2  Benedict,  240. 

{o)    Hobart  vs.  Abbot,  2  P.  Wms.  643. 

(jp)  Wa/rner  vs.  Hilm,  1  Gilm.  220. 
25 


386         c  BILLS   TO   FORECLOSE   MORTGAGES. 

Form  of  Bill  of  Strict  Foreclosure. 

Form  of  hill. — The  form  of  a  bill  for  a  strict  foreclosure  is 
nearly  the  same  as  that  for  a  sale.  The  prayer,  however,  is 
different.  It  prays  that  an  account  may  be  taken  of  what  is 
due  to  the  complainant  on  his  mortgage,  and  that  the  mort- 
gagor may  be  decreed  to  pay  the  amount  found  due,  by  a  short 
day  to  be  appointed  by  the  court ;  or,  in  default  thereof,  that 
the  mortgagor,  and  all  persons  claiming  under  him,  may  be 
debarred  and  foreclosed  of,  and  from,  all  rights  and  equity  of 
redemption  in,  or  to,  the  mortgaged  premises. 

No.  IJfJi,.     Bill  for  st/rict  foreclosure. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  one  C.  D.,  of,  etc.,  one  of  the  defendants 
hereinafter  named,  became  and  was  indebted  to  your  orator  in 

the  sum  of dollars,  and  being  so  indebted,  on  the  same 

day,  and  in  consideration  thereof,  made  and  executed  to  your 
orator  his  promissory  note  of  that  date  for  that  amount,  pay 

able  to  your  orator after  date,  with  interest,  etc.,  as  by 

the  said  note  when  produced,  and  a  copy  of  the  same  hereto 
attached,  marked  "  Exhibit  A,"  and  made  a  part  of  this  bill 
of  complaint,  will  more  fully  appear. 

Your  orator  further  represents  that  the  said  C.  D.  and  E.  D., 
his  wife,  on,  etc.,  to  secure  the  payment  of  the  principal  sum 
and  interest  mentioned  in  the  said  promissory  note,  made  and 
executed  under  their  hands  and  seals,  and  delivered  to  your 
orator  a  mortgage,  conditioned  for  the  payment  of  the  said 
sum  of dollars  and  interest  mentioned  in  said  note,  accord- 
ing to  the  tenor  and  effect  thereof;  by  which  said  mortgage 
the  said  C.  D.  and  E.  D.,  his  wife,  conveyed  to  your  orator,  in 
fee,  the  following  described  real  property,  to  wit :  {Here  insert 
descrijjtion  of  mo7'tgaged premises  ;)  which  said  mortgage  was 
duly. acknowledged ;  and  afterwards,  on,  etc.,  duly  recorded  in 

the  office  of  the  recorder  of  the  said  county  of ,  in  the 

state  of ,  in  book  — ,  of  mortgages,  at  page  — ,  as  by  the 

said  mortgage  and  its  accompanying  certificates  of  acknowledg- 
ment and  recording,  ready  to  be  produced  in  court,  and  a  copy 
of  the  same  hereto  attached,  marked  "  Exhibit  B,"  and  made  a 
part  of  this  bill,  will  more  fully  appear. 

Your  orator  further  represents  that  the  sum  of dollars, 


BILLS  TO   FORECLOSE   MORTGAGES.  387 

Form  of  Bill  of  Strict  Foreclosure. 

with  interest  from,  etc.,  remains  due  and  nnpaid  to  your  orator 
on  the  said  note  and  mortgage,  and  that  no  proceedings  at  law 
have  been  had  to  recover  the  debt  secured  thereby,  or  any 
part  thereof. 

Your  orator  further  represents  that  the  said  C.  D.  is  now 
wholly  insolvent,  and  unable  to  redeem  the  said  premises  ;  and 
that  the  said  mortgaged  propert}^  is  meagre  and  scant  security 

for  the  said  sum  of dollars,  and  the  interest  mentioned  in 

the  said  note  and  mortgage,  and  now  due  your  orator ;  and 
that  the  value  thereof  is  wholly  insufficient  to  pay  the  amount 
so  due,  with  the  costs  of  this  proceeding. 

And  your  orator  further  represents  that  E.  F.  and  G.  H.,  of, 
etc.,  have,  or  claim  to  have,  some  interest  in  the  said  mort- 
gaged premises,  or  some  part  thereof,  as  judgment  creditors  or 
otherwise,  which  interests,  if  any,  have  accrued  subsequent  to 
the  lien  of  the  said  mortgage  of  your  orator,  and  are  subject 
thereto. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity  ;  and  to  the  end  that 
the  said  C.  D.,  E.  D.,  E.  F.  and  G.  H.,  who  are  made  parties 
defendant  to  this  bill,  may  be  required  to  make  full  and  direct 
answer  to  the  same,  hut  not  tinder  oath,  the  answer  under 
oath  heing  hereby  waived ;  that  an  account  may  be  taken  in  this 
behalf,  by  or  under  the  direction  of  this  honorable  court ;  that 
the  defendants,  or  some  of  them  may  be  decreed  to  pay  to 
your  orator  what  may  be  found  due  to  him  on  taking  the  said 
account,  together  with  his  costs  of  this  suit,  by  a  short  day  to 
be  appointed  by  the  court  for  that  purpose ;  or,  in  default 
thereof,  that  the  defendants,  and  all  persons  claiming  under 
them,  may  be  absolutely  and  forever  debarred  and  foreclosed  of 
and  from  all  right  and  equity  of  redemption  in  or  to  the  said 
mortgaged  premises,  and  every  part  thereof;  and  that  the  said 
C.  D.  may  deliver  up  to  your  orator  all  deeds,  papers  or 
writings  in  his  custody  or  power  relating  to  or  concerning  the 
said  mortgaged  premises,  or  any  part  thereof;  and  that  your 
orator  may  have  such  other  and  further  relief  in  the  premises 
as  equity  may  require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  j^rocess  as  in  Wo.  HI, 
ante,  ^age  380,  and  add  exhihits.) 


388  BILLS   TO   FORECLOSE   MORTGAGES. 

Defenses  to. 

SECTION  VII. 
DEFENSES    TO. 

A  mortgagor  is  not  permitted  to  deny  his  own  title,  {p) 

Where  a  mortgage  is  given  upon  one  tract  of  land  to  secure 
the  purchase  money  of  another  tract,  which  the  mortgagee 
covenants  to  convey  with  warranty,  but  to  which  he  has  no 
title,  such  failure  of  title  in  the  vendor  is  a  good  defense  in 
equity  in  a  proceeding  to  foreclose  the  mortgage,  {q) 

An  assignee  of  a  note  secured  by  mortgage  takes  it  subject 
to  prior  equities  between  the  original  parties,  {r) 

It  is  said,  that  a  mortgagee,  with  notice  of  subsequent  liens, 
has  no  right  to  release  his  mortgage,  to  the  prejudice  of  such 
liens,  {s)  Upon  this  principle  it  has  been  held,  that  if  the  mort- 
gagee, for  a  consideration,  release  that  portion  of  the  land 
which  was  primarily  liable  for  the  debt,  he  thereby  discharges 
the  other  portion.  (J)  So,  if  two  estates  are  mortgaged  in  one 
deed,  and  transferred  to  different  persons,  and  one  released  by 
the  mortgagee;  the  owner  of  the  other,  on  redeeming,  cannot 
compel  contribution,  but  may  claim  a  deduction  from  the  debt 
in  proportion  to  the  value  of  the  parcel  released,  {u) 

A  party  seeking  to  foreclose  a  mortgage  tainted  with  usury, 
and  the  usury  being  established,  a  forfeiture  of  all  interest  is 
the  necessary  consequence.  If,  however,  the  mortgagor  was 
seeking  relief  against  a  usurious  mortgage,  then  the  court 
would  require  him  to  pay  legal  interest,  on  the  principle  that 
he  who  asked  equitable  relief  should  do  equity,  and  equity 

{p)  Racine  &  Miss.  B.  R.  Co.  vs.  Farmer's  Loan  &  Trust  Co.  49  111.  331. 

((?)    Smith  vs.  Newton,  38  111.  230  ;  see  also  Weaver  vs.  Wilson,  48  111.  125. 

(r)    Lock  vs.  Fulford,  52  111.  166  ;  Huhhard  vs.  Turner,  3  McLean,  519. 

(s)    McLean  vs.  Lafayette,  etc.  3  McLean,  587. 

(0  Paxton  vs.  Harrier,  11  Penn.  312;  see  Hohnan  vs.  Bank,  etc.  12  Ala. 
369;  Haiche  vs.  Smjdaker,  86  111.  197. 

(w)  Parkman  vs.  Welch,  19  Pick.  238;  see  also  Iglehart  vs.  Crane,  42 
111.  261;  Loch  vs.  Fulford,  52  111.  160;  see  further  defenses  of  this  nature,  1 
Hilliard  on  Mortgages,  327  et  seq. 


BILLS   TO   FORECLOSE   MORTGAGES.  389 

Decree  of  Foreclosure. 

would  require  him  to  pay  legal  interest.  In  such  a  ease,  a 
court  of  equity  could  prescribe  the  terms  of  its  interference,  {v) 
We  have  not  the  space  to  enter  into  a  more  full  examination 
of  defenses  to  a  foreclosure.  Works  specially  treating  of  the 
subject  of  mortgages  will  have  to  be  consulted,  (w) 

SECTION  VIII. 
DECREE   OF   FOEECLOSURE. 

We  have  already  considered  the  general  requisites  of  a  decree 
in  equity,  and  need  now  only  mention  a  few  points  having 
special  reference  to  a  decree  of  foreclosure. 

The  statute  of  Illinois  provides  that,  "  in  all  decrees  here- 
after to  be  made  in  suits  in  equity  directing  foreclosure  of  mort- 
gages, a  decree  may  be  rendered  for  any  balance  of  money  that 
may  be  found  due  to  the  complainant  over  and  above  the  pro- 
ceeds of  the  sale  or  sales,  and  execution  may  issue  for  the  col- 
lection of  such  balance,  the  same  as  when  the  decree  is  solely 
for  the  payment  of  money.  And  such  decree  may  be  rendered 
conditionally,  at  the  time  of  decreeing  the  foreclosure,  or  it 
may  be  rendered  after  the  sale  and  the  ascertainment  of  the 
balance  due :  Provided,  that  such  execution  shall  issue  only  in 
cases  where  personal  service  shall  have  been  had  upon  the 
defendant  or  defendants  personally  liable  for  the  mortgage  debt, 
unless  their  appearance  shall  be  entered  in  such  suit."  (x) 

The  92d  rule  for  practice  in  the  courts  of  equity  of  the 
United  States,  adopted  at  the  Decembei-  term,  1863,  provides, 
"  that  in  suits  in  equity  for  the  foreclosure  of  mortgages  in  the 
circuit  courts  of  the  United  States,  or  in  any  court  of  the  terri- 
tories having  jurisdiction  of  the  same,  a  decree  may  be  rendered 
for  any  balance  that  may  be  found  due  to  the  complainant  over 
and  above  the  proceeds  of  the  sale  or  sales,  and  execution  may 
issue  for  the  collection  of  the  same,  as  is  provided  in  the  8th 


(v)    Snyder  vs.  Griswold,  37  111.  216;  Cushman  vs.  Sutphen,  43  111.  256. 
{w)  See  Hilliarcl  on  Mortgages;  Fisher  on  Mortgages,  etc. 
{x)  Rev.  Stat.  (1877)  676;  Hoag  vs.  Starr,  69  111.  362;  see  McClurg  vs. 
Phillips,  40  Mo.  315;  Siiell  vs.  Stanley,  58  111.  31. 


390  BILLS   TO   FORECLOSE   MORTGAGES. 

Decree  of  Foreclosure. 

rule  of  tJiis  court  regulating  the  equity  practice,  where  the  decree 
is  solely  for  the  payment  of  money." 

Under  rule  92,  above  referred  to,  the  power  of  the  circuit 
court  of  the  United  States,  in  a  foreclosure  suit,  to  order  a 
general  execution  for  any  balance  remaining  due,  after  sale  oJ 
the  mortgaged  premises,  is  a  discretionary  one.  (y) 

The- common  practice  in  courts  of  chancery,  upon  a  fore- 
closure of  mortgages,  is  to  decree  a  surrender  of  the  possession 
and  title  papers  by  the  mortgagor  and  those  claiming  under 
him.  (s) 

Where  the  decree  directs  the  mortgagor,  or  the  party  in  pos- 
session of  the  mortgaged  premises,  to  surrender  up  the  posses- 
sion to  the  purchaser,  the  court,  upon  an  affidavit  showing  the 
service  of  a  copy  of  the  order,  accompanied  with  the  demand 
of  the  possession,  and  a  refusal  of  the  party  to  comply,  will 
issue  a  writ  of  execution  of  the  order  to  put  the  purchaser  in 
possession,  {a) 

But  where  the  decree  contains  no  such  order,  the  court,  on 
motion,  will  make  the  order ;  and  upon  the  like  service  of  a 
copy  and  demand  of  possession,  the  court  will,  on  motion,  and 
without  notice,  order  an  injunction  against  the  party  to  surren- 
der possession ;  and  then,  on  an  affidavit  of  the  service  of  the 
injunction  and  refusal  to  deliver  possession,  a  writ  of  assistance 
to  the  sheriff  to  put  the  purchaser  in  possession  issues  of  course, 
on  motion  and  without  notice.  (J) 

When  premises  have  been  mortgaged,  and  subsequently 
parcels  of,  or  undivided  interests  in  the  same  lands  have  been 
conveyed  or  incumbered,  on  a  foreclosure  of  such  mortgage,  the 
decree  should  provide  that  the  premises  be  sold  in  the  inverse 
order  of  such  conveyances  or  incumbrances,  (c) 

(y)    Phelps  ys.  Loyhed,  1  Dillon,  512. 

{z)     Lawrence  vs.  Lane,  4  Gilm.  354. 

(«)    Ahlnch  vs.  Sharp,  3  Scam.  201;  O'Brien  vs.  Fry,  82  111.  87. 

(&)     lb.;  Jackson  vs.  Warren,  32  111.  331. 

(c)  BrigffR  vs.  Kaufman,  2  Mich.  N.  P.  160;  see  Sibley  vs.  Baker,  23 
Mich.  312;  McCidlum  vs.  TurjJie,  32  Ind.'146,  see  Lock  vs.  Fulford,  52  111. 
156;  Payne  vs.  Avery,  21  Mich.  524;  contni,  see  Barney  vs.  Myers,  28  Iowa, 
472;  Niles  vs.  Harmon,  80  111.  396;  Haivhe  vs.  Snydaker,  86  111.  197;  St. 
Joseph  M.  Co.  vs.  Daygett,  84  111.  556. 


BILLS   TO   FORECLOSE   MORTGAGES.  391 

'Form  of  Decree  —  Pro  confesso. 

A  decree  of  strict  foreclosure,  which  neither  finds  the  amount 
due,  nor  gives  time  for  redemption,  but  is  final  and  conclusive 
in  the  first  instance,  cannot  be  sustaiiied  in  the  absence  of  some 
special  law  to  authorize  it.  (d) 

No.  IJfB.     Decree  of  foreclosure  and  scde,  pro  confesso. 

{Caption,  and  title  of  cause  as  in  No.  79,  ^nte,  page  198.) 

And  now  on  this  day  comes  the  complainant,  by his 

solicitor,  and  it  appearing  to  the  court  here,  from   the  writ 

issued  herein  to  the  sherift'  of   the  county  of ,  and  the 

return  thereon,  that  the  defendants  C.  D.  and  E.  F.  had  been 
duly  served  with  process  herein,  at  least  ten  days  prior  to  the 
first  day  of  the  present  term  of  this  court,  and  the  defendants 
having  been  severally  three  times  called  in  open  court  to  plead, 
answer  or  demur  to  the  complainant's  bill,  came  not,  but  herein 
made  default ;  it  is  therefore  ordered,  adjudged  and  decreed 
that  the  same  be  taken  for  confessed  against  the  said  defendants. 
And  the  court  having  ordered  this  cause  to  be  referi'ed  to 
the  master  in  chancery  of  this  court,  to  take  proofs  of  the  mat- 
ters stated  in  the  bill,  and  to  compute  the  amount  due  the 
complainant  upon  the  note  and  mortgage  mentioned  in  said 
bill ;  and  the  said  master  having  made  report  thereof  to  the 
court,  which  said  report  is  hereby  approved  and  confirmed  by 
the  court ;  and  thereupon  this  cause  coming  on  for  a  final  hearing 
upon  the  bill  and  the  said  report  of  the  master ;  and  the  court 
being  fully  advised  in  the  premises,  doth  find : 

That  the  allegations  in  said  bill  contained  are  true,  as  therein 
stated ;  that  the  court  has  jurisdiction  of  the  subject  matter, 
and  the  parties  in  this  cause ;  and  that  the  equity  of  this  cause 
is  witli  the  complainant ;  and  that  there  is  now  due  from  the 
defendant  C.  D.  to  the  complainant,  for  principal  and  interest 
on  said  note  and  mortgage,  tlie  sum  of dollars.  (*) 

It  is  therefore  ordered,  adjudged  and  decreed,  by  the  court, 

that  the  defendants  pay  to  the  complainant,  within —  days 

from  this  date,  the  said  sum  of dollars,  with  lawful  inter- 
est to  be  computed  thereon,  from  this  day  until  paid,  and  also' 
the  costs  of  this  suit,  to  be  taxed  by  the  clerk  of  this  court. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  in  de- 
fault of  said  payment  being  made  as  aforesaid,  by  the  defendants, 
then,  and  in  that  case,  the  said  mortgaged  premises  mentioned 
in  the  bill  of  complaint  in  this  cause,  to  wit :  {Here  describe 


{d)    Clark  vs.  Beyhurn,  8  Wallace.  318. 


392  BILLS   TO   FORECLOSE   MORTGAGES. 


Form  of  Decree  —  Pro  confesso. 


the  mortgaged  premises,)  or  so  mucli  thereof  as  may  be  sufficient 
to  realize  the  amount  so  due  the  complainant,  principal  and 
interest,  and  also  the  costs  of  this  suit,  including  the  fees,  dis- 
bursements and  commissions  on  the  sale  herein  mentioned,  and 
which  may  be  sold  separately  without  material  injury  to  the 
parties  interested,  be  sold  at  public  vendue,  for  cash  in  hand, 
to  the  highest  and  best  bidder,  at  the  front  door  of  the  court 

house  in  said  county  of ;  that  the  master  in  chancery  of 

this  court  execute  this  decree ;  that  he  give  public  notice  of  the 
time  and  place  of  said  sale,  by  previously  publishing  the  same 

for  the  space  of days  in  a  neM^spaper  published  in  said 

county  ;  and  that  the  complainant,  or  any  of  the  parties  in  this 
cause,  may  become  the  purchaser  or  purchasers  ;  that  the  said 
master,  on  such  sale  being  made,  execute  a  certificate  of  pur- 
chase to  each  purchaser  or  purchasers  thereof,  or  any  portion 
thereof;  which  certificate  shall  specify  the  lands  or  tenements 
purchased  by  such  purchaser  or  purchasers,  and  the  sum  paid 
therefor ;  or,  if  purchased  by  the  complainant  in  said  bill,  the 
amount  of  his  bid,  and  the  time  when  the  purchaser  will  be 
entitled  to  a  deed  for  such  lands  or  tenements,  unless  the  same 
shall  be  redeemed  according  to  law,  and  the  said  master  shall 
also  file,  in  the  office  of  the  recorder  of  said  county,  a  duplicate 
of  such  certificate  or  certificates  signed  by  him. 

And  the  said  master,  out  of  the  proceeds  of  such  sale,  shall 
retain  his  fees,  disbursements  and  commissions  on  said  sale ; 
that  he  pay  the  officers  of  this  court  their  costs  in  this  suit ; 
and  that  out  of  the  remainder  of  said  proceeds  he  pay  to  the 

complainant  the  said  sura  of dollars,  together  with  legal 

interest  thereon,  from  the  date  of  this  decree,  to  the  day  of 
sale ;  or,  if  such  remainder  shall  be  insufficient  to  pay  the  whole 
of  said  amount  and  interest,  as  aforesaid,  then  that  "he  apply 
said  remainder  to  the  extent  to  which  it  may  reach  in  satisfac- 
tion of  said  amount  and  interest ;  and  that  the  said  master  take 
receipts  from  the  respective  parties  to  whom  he  may  have  made 
payments  as  aforesaid,  and  file  the  same,  together  with  his  report 
of  sale,  in  this  court.  And  that,  in  case  the  said  premises  shall 
sell  for  more  than  sufficient  to  pay  the  principal,  interest  and 
costs  in  this  suit,  then  that  the  said  master,  after  making  pay- 
ments as  aforesaid,  bring  such  surplus  moneys  into  court  with- 
out delay,  to  abide  the  farther  order  thereof. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the 
defendants,  and  all  persons  claiming  by,  through  or  under 
them,  since  the  commencement  of  this  suit,  be  forever  barred 
and  foreclosed  from  all  eijuity  of  redemption,  and  claim  of,  in 
and  to  said  mortgaged  premises,  or  any  ])ai't  thereof,  if  the 


BILLS  TO   FORECLOSE   MORTGAGES.  393 

Form  of  Decree  —  Pro  confeaso. 

same  are  not  redeemed,  according  to  law,  by  the  defendants, 
their  heirs,  executors,  administrators  or  grantees,  within  twelve 
months  next  after  the  day  of  such  sale,  and  by  all  judgment 
<;reditors,  and  their  representatives  and  assigns  wiihrnjifteen 
months  next  after  the  day  of  said  sale ;  and  that  at  the  expira- 
tion of  said  fifteen  months  next  after  the  day  of  said  sale,  if 
said  mortgaged  premises,  or  any  portion  thereof,  are  not 
redeemed  as  aforesaid,  then,  in  that  case,  upon  the  production 
to  the  then  acting  master  in  chancery,  and  filing  in  his  office 
of  the  certificate  of  purchase  executed  by  the  master  in  chan- 
•cery,  as  aforesaid,  to  the  purchaser  or  purchasers  of  said  mort- 
gaged premises,  or  any  portion  thereof,  by  such  purchaser  or 
purchasers,  his  or  their  representatives  or  assigns,  said  master 
shall  make,  execute  and  deliver  to  such  purchaser  or  purchasers, 
or  his  or  their  representatives  or  assigns,  good  and  sufficient 
conveyance  or  conveyances,  in  fee  simple  of  said  premises,  or 
such  portion  thereof  as  shall  have  been  sold  to  such  purchaser 
or  purchasers  respectively. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  upon 
the  execution  and  delivery  of  the  conveyance  or  conveyances 
as  aforesaid,  the  said  purchaser  or  purchasers,  his  or  their  repre- 
sentatives or  assigns,  be  let  into  possession  of  the  portion  of 
said  mortgaged  premises  so  conveyed  to  him  or  them ;  and 
that  any  of  the  parties  in  this  cause,  who  may  be  in  possession 
of  said  premises,  or  any  part  thereof,  and  any  person  who, 
since  the  commencement  of  this  suit,  has  come  into  possession, 
under  them  or  either  of  them,  on  the  production  of  the  master's 
deed  of  conveyance,  and  a  certified  copy  of  the  order  of  this 
court,  confirming  the  report  of  said  sale,  shall  surrender  j^os- 
session  thereof  to  such  purchaser  or  purchasers,  their  repre- 
sentatives or  assigns,  and  on  refusal  so  to  do,  will  be  con- 
sidered in  contempt  of  this  court. 

And  it  is  further  ordered,  adjudged  and  decreed,  that  if  the 
moneys  arising  from  said  sale  shall  be  insufficient  to  pay  the 
amount  so  due  the  complainant,  with  interest  as  aforesaid,  after 
deducting  the  costs  and  expenses  of  sale,  as  aforesaid,  that  said 
master  specify  the  amount  of  such  deficiency  in  his  report  of 
said  sale,  and  that  on  the  coming  in  and  confirmation  of  said 
report,  the  defendant  C.  D.,  who  is  personally  liable  for  the 
payment  of  the  debt  secured  by  said  mortgage,  pay  to  the  com- 
plainant the  amount  of  such  deficiency,  with  interest  thereon, 
from  the  date  of  such  last  mentioned  report,  and  that  the  com- 
plainant have  execution  therefor. 

It  is  further  ordered,  that  the  master  in  chancery,  if  pr.U'tica- 
ble,  report  his  proceedings  in  the  premises  to  the  court,  at  the 


394  BILLS   TO    FORECLOSE   MOETGAGES. 

Decree  of  Sale  —  Decree  of  Strict  Foreclosure. 

first  term  of  this  court,  to  which  time  this  cause  is  hereby 
continued. 

No.  llfi.     Decree  of  fo/'eclositre,  and  sale  uj)on  a  hearing. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answers  of  the  defendants  thereto,  the  repli- 
cation of  the  complainant  to  such  answers,  and  the  proofs  taken 
in  said  cause,  and  having  been  argued  by  counsel  for  the  respec- 
tive parties ;  and  the  court  being  fully  advised  in  the  premises, 
doth  find :  that  the  allegations  in  the  said  bill  contained  are 
true  as  therein  stated ;  and  that  the  equities  of  this  cause  are 
with  the  complainant ;  and  that  there  is  noM'  due  from  the 
defendant  C.  I),  to  the  complainant,  for  principal  and  interest 

on  said  note  and  mortgage,  the  sum  of dollars. 

{Proceed  with  the  ordering  part  as  in  No.  1^5,  ante,  page 
391,  from  the  asterish.  * ) 

No.  lJf7.     Decree  of  strict  foreclosure. 

{Proceed  as  in  No.  11^6,  cthove,  to  the  asterish  *,  and  then 
as  follows :)  And  the  court  further  finds,  that  the  defend- 
ant C.  D.  is  now  wholly  insolvent  and  unable  to  redeem  the 
said  mortgaged  premises  ;  and  that  the  said  mortgaged  prem- 
ises is  meager  and  scant  security  for  the  amount  so  found  to  be 
due  as  aforesaid  ;  and  that  the  value  of  said  premises  is  wholly 
insufficient  to  pay  the  amount  so  found  to  be  due  and  the  costs 
of  this  proceeding ;  and  that  no  benefit  can  inure  to  the 
defendants,  or  either  of  them,  by  a  sale  of  said  mortgaged 
premises. 

It  is  therefore  07'dered,  adjudged  and  decreed,  by  the  court, 

ehat  the  defendant  pay  to  the  complainant  within months 

('rom  this  date,  tlie  said  sum  of dollars,  with  lawful  inter- 
est to  be  computed  thereon  from  this  day  until  paid,  and  also 
the  costs  of  this  suit,  to  be  taxed  by  the  clerk  of  this  court. 

And  it  is  further  ordered  that  upon  the  defendant  paying  to 

the  complainant  the  sum  of dollars  as  aforesaid,  within 

tlie  time  above  mentioned,  that  the  complainant  do  reconvey 
the  said  mortgaged  premises  to  the  defendant  C.  D.,  by  a  suit- 
able or  proper  instrument  of  conveyance ;  to  be  approved  by 
the  master  in  chancery  of  this  court,  in  case  the  said  parties 
cannot  agree  upon  the  form  thereof;  and  further  that  the  com- 
plainant cancel  and  discharge  such  mortgage  of  record.  But 
m  case  of  default  of  the  defendant's  paying  to  the  complainant 


BILLS   TO   FORECLOSE   MORTGAGES.  395 

Decree  of  Strict  Foreclosure. 


such  principal,  interest  and  costs  as  aforesaid,  by  the  time  lim- 
ited for  that  purpose,  then  it  is  ordered,  adjudged  and  decreed, 
that  the  defendant  be  forever  barrixl  and  foreclosed  from  all 
equity  of  redemption,  and  claim  of,  in  and  to  said  mortgaged 
premises,  to  wit:  {Here  descrihe  the  mortgaged pTemises)  and 
to  any  part  thereof;  and  that  the  complainant  or  his  legal 
representatives  or  assigns,  be  let  into  possession  thereof;  and 
that  the  parties  in  this  cause,  who  may  be  in  possession  of  said 
premises,  or  any  ])art  thereof,  and  any  person  who,  since  the 
commencement  of  this  suit,  has  come  into  possession  under 
them,  or  either  of  them,  on  the  production  of  a  certified  copy 
of  this  order,  surrender  the  possession  thereof  to  the  complain- 
ant, his  representatives  or  assigns,  and  on  refusal  so  to  do,  be 
considered  in  contempt  of  this  court. 

For  additional  Illinois  cases  relating  to  foreclosure,  see 
Dickmcui  vs.  Wood,  60  111.  329;  Ilirds  vs.  BuHon,  70  IH. 
504:  Dowdenys,.  Wihon,  71  111.  4S5  ;  Terry  vs.  Enrt'lca  Col- 
lege, 70  111.  23(5;  De  Leuw  vs.  Nedy,  71  111.  473;  Eloch  vs. 
Walter,  70  111.  416;  Nat.  Ins.  Co.  vs.  Wdjster.  S3  111.  470; 
Hanford  vs.  Blessing,  80  111.  188;  Nlles  vs.  narmo7i,  80  111. 
396  ;  CaUe  vs.  Ellis,  86  111.  674  ;  Sheen  vs.  Iloyan,  86  111.  16  ; 
Malier  vs.  Lanfrom,  86  111.  513;  Mulvey  vs.  Gibhons,  87  111. 
367;  Ilaworth  vs.  Hiding,  87  111.  23;  Shaver  v?,.  Willi am,s, 
87  111.  469  ;  Murch'xs.  Mayers,  85  111,  177  ;  Haas  vs.  Chicago 
Building  Co.,  89  111.  498. 


CHAPTER  XXIX. 

creditor's  bill. 

Section.  1.  When  a  Creditor's  Bill  may  be  Filed. 

2.  What  may  be  Reached  by. 

3.  Parties  to  the  Bill. 

4.  Priority  and  Lien  of  Bills. 

5.  Frame  op  Bill. 


SECTION  I. 
WHEN   A    creditor's    BILL   MAY   BE   FILED. 

The  jurisdiction  of  a  court  of  chancery  in  suits  brought  by 
judgment  creditors  to  enforce  the  collection  of  their  judgments, 
after  having  exhausted  their  remedy  at  law,  although  it  may 
have  previously  existed,  is  generally  expressly  declared  and 
particularly  defined  by  statutes.  The  statute  of  Illinois,  with 
respect  to  bills  of  this  nature,  which  is  the  foundation  of  the 
present  practice  of  the  court  in  such  cases,  in  that  state,  is  as 
follows : 

"  Whenever  an  execution  shall  have  been  issued  against  the 
property  of  a  defendant,  on  a  judgment  at  law  or  in  equity, 
and  shall  have  been  returned  unsatisfied,  in  whole  or  in  part, 
the  party  suing  out  such  execution  may  file  a  bill  in  chancery 
against  such  defendant,  and  any  other  person  to  compel  the 
discovery  of  any  property  or  thing  in  action,  belonging  to  the 
defendant,  and  of  any  property,  money  or  thing  in  action  due 
to  him,  or  held  in  trust  for  him,  and  to  prevent  the  transfer  of 
any  such  property,  money  or  thing  in  action,  or  the  payment 
or  delivery  thereof,  to  the  defendant,  except  when  such  trust 
has,  in  good  faith,  been  created  by,  or  the  fund  so  held  in  trust 
has  proceeded  from,  some  person  other  than  the  defendant 
himself.  The  court  shall  have  power  to  compel  such  discovery, 
and  to  prevent  such  transfer,  payment  or  delivery,  and  to 
decree  satisfaction  of  the  sum  remaining  due  on  such  judgment, 


CREDITOR'S   BILL.  397 

Nature  of  —  When  Proper. 

out  of  any  personal  property,  money  or  things  in  action,  belong- 
ing to  the  defendant,  or  held  in  trust  for  him,  with  the  excep- 
tion above  stated,  which  shall  be  discovered  by  the  proceedings 
in  chancery,  whether  the  same  were  originally  liable  to  be  taken 
in  execution  at  law  or  not :  Provided^  that  no  answer  made  to 
any  bill  filed  under  this  and  the  preceding  section,  shall  be 
read  in  evidence  against  the  defendant  on  the  trial  of  any  in- 
dictment for  fraud  charged  in  the  bill."  {a) 

When  proper. —  A  creditor  must  first  obtain  a  judgment  and 
seek  to  collect  his  debt  by  execution  before  he  can  resort  to  the 
equitable  estate  of  his  debtor,  (b)  But  in  proceedings  against 
intestate  estates  which  are  insolvent,  a  resort  to  equity  may  be 
had  without  this  preliminary  step,  since,  by  the  statute,  an 
execution  cannot  issue  upon  a  judgment  against  an  adminis- 
trator, (c) 

In  order  to  maintain  a  strict  creditor's  bill  within  the  mean- 
ing of  the  section  of  the  Illinois  statute,  which  we  have  quoted, 
the  remedy  at  law  must  appear  to  have  been  exhausted,  by  ob- 
taining a  judgment,  and,  if  the  defendant  was  not  insolvent, 
an  execution  returned  nulla  hona.  {d)  But  the  law  is  other- 
wise, where  a  creditor  by  his  bill  merely  seeks  to  remove  a 

(a)    Rev.  Stat.  (1874)  203;  Rev.  Stat.  (1877)  189. 

(6)  Ishmael  vs.  Parker,  13  111.  324  ;  Bay  vs.  Cook,  31  111.  836  ;  Heacock 
vs.  Durand,  42  111.  230 ;  McConnel  vs.  Dickson,  43  111.  99  ;  Newman  vs.  Wil- 
letts,  52  111.  98 ;  see  Duberry  vs.  Clifton,  Cooke,  328 ;  Morgan  vs.  CraVb,  3 
Porter,  470 ;  Wright  vs.  Petrie,  1  S.  &  M.  Ch.  282 ;  Scott  vs.  Wallace,  4  J.  J. 
Marsh.  654  ;  Danna  vs.  Banks,  6  Id,  219  ;  Wooley  vs.  Stone,  7  Id.  302  ;  Beck 
vs.  Burdett,  1  Paige,  Ch.  305  ;  McElwain  vs.  Willis,  9  Wend.  548  ;  Screven 
vs.  Bostick,  2  McCord,  Ch.  410 ;  Clark  vs.  Banner,  1  Dev.  &  Bat.  Ch.  608 ; 
McDermot  vs.  Blois,  Chart.  R.  M.  281  ;  Parish  vs.  Lewis,  1  Freem.  Ch.  299 ; 
West  vs.  McCarty,  4  Blackf.  244  ;  Kelso  vs.  Blackburn,  3  Leigh,  299 ;  Rice  vs. 
Barnard,  20  Vt.  479  ;  North  Am.  Fire  Ins.  Co.  vs.  Graham,  5  Sandf.  197 ; 
BarrotvYs.  Bailey,  5  Florida,  9;  U.  S.  vs.  Sturges,  1  Paine's  R.  525;  Moshier 
vs.  Meek,  80  111.  79;  Lawson  vs.  Gruhhs,  44  Geo.  466. 

(c)  McDowell  vs.  Cochran,  11  111.  31  ;  Armstrong  vs.  Cooper,  11  111.  560; 
Van  Syckel  vs.  Richardson,  13  111.  174  ;  Bay  va.  Cook,  31  111.  337;  Steere  vs. 
Hoagland,  39  111.  264 ;  see  Ryan  vs.  Jones,  15  111.  1 ;  Smith  vs.  Sheppard,  2 
Hey.  163  ;  Horner  vs.  Zimmerman,  45  111.  14  ;  Mugge  vs.  Ewing,  54  III.  236  r 
Eogan  vs.  Walker,  14  How.  U.  S.  29. 

(d)  Miller  vs.  Davidson,  3  Gilm.  518  ;  Newman  vs.  Willetta,  52  III.  98. 


398  CREDITOR'S   BILL. 

When  Proper  —  What  may  be  Reached  by. 

fraudulent  conveyance  out  of  the  way  of  his  execution.  But 
in  that  case  the  bill  must  show  that  the  judgment  was  an  exist- 
ing lien  on  the  property  conveyed.  If  it  appears  that  a  year 
had  elapsed  after  the  rendition  of  the  judgment  with  an  execu- 
tion being  issued  thereon,  the  bill  cannot  be  maintained,  {e) 

Justice^ s  jxidgment. — A  judgment  before  a  justice  of  the 
peace  is  a  sufficient  foundation  for  a  creditor's  bill,  if  the 
amount  is  large  enough  to  confer  jurisdiction  on  the  court.  (/" ) 

In  United  States  court. — A  creditor's  bill  may  be  filed  in 
the  circuit  court  of  the  United  States,  in  the  mode  authorized 
by  the  local  state  law.  {g)  But  a  bill  will  not  lie  in  a  state 
court  on  a  judgment  obtained  in  the  federal  court.  (A) 


SECTION  II. 
WHAT   MAY    BE    REACHED    BY. 

Upon  a  creditor's  bill  every  species  of  property  belonging  to 
the  debtor  may  be  reached  and  applied  to  the  satisfaction  of 
his  debts ;  and  his  debts,  choses  in  action,  and  other  equitable 
rights  may  be  assigned  or  sold  under  the  decree  of  the  court 
for  that  purpose,  (-i) 

Upon  a  bill  of  this  nature  the  complainant  may  reach  the 
defendant's  interest  in  the  effects  of  a  copartnership,  after  pay- 

(e)  Newman  ys.Willetts,  52  111.  98;  WeigUman  ya.  Hatch,  17  111.  281; 
see  also  Greenway  vs.  Thomas,  14  111.  271 ;  Turner  vs.  Adams,  46  Mo.  95 ; 
Webster  vs.  Folsom,  58  Maine,  230  ;  Bailey  vs.  Burton,  8  Wend.  339. 

(/)  Steers  vs.  Hoagland,  39  111.  264. 

ig)  Suydam  vs.  Beats,  4  McLean,  12 ;  Lanmon  vs.  Clark,  Id.  18  ;  Wilkin- 
son vs.  Yale,  6  McLean,  16 ;  see  Babcock  vs.  Willard,  4  West.  Law  Monthly, 
314. 

(7i)    Steere  vs.  Hoagland,  39  111.  264. 

(i)  Edmeston  vs.  Lyde,  1  Paige,  Ch.  637  ;  see  Craig  vs.  Hone,  2  Edw.  Ch. 
554 ;  Weed  vs.  Pierce,  9  Cow.  722  ;  Congden  vs.  Lee,  3  Edw.  Ch.  304 ;  Thomp- 
son vs.  Nixon,  lb.  457  ;  Brewster  \s.\Power,  10  Paige,  Ch.  R.  562  ;  Bensotiva. 
LeRoy,  4  Johns.  Ch.  R.  651 ;  Cohen  vs.  Carroll,  5  S.  &  M.  545  ;  Wagoner  vs. 
Speck,  3  Ham.  294  ;  Piatt  vs.  Judson,  3  Blackf.  235  ;  Demaree  vs.  Driskell, 
lb.  115. 


CREDITOE'S   BILL.  399 

What  may  be  Reached  by. 

ment  of  the  partnership  debts,  and  satisfying  all  prior  equities 
in  favor  of  his  copartners,  (j)  So,  where  an  express  trust  has 
'been  created  to  receive  the  interest  or  income  of  trust  property, 
and  to  apply  it  to  the  use  of  a  person  from  time  to  time,  the 
surplus  beyond  what  is  necessary  for  his  support  and  mainte- 
nance may  be  reached  by  a  creditor's  bill,  after  such  interest  or 
income  has  become  due.  (k) 

On  a  creditor's  bill,  the  court  may  so  control  the  custody  ot 
negotiable  notes,  and  provide  for  demand  and  notice,  as  to  pre- 
vent their  being  negotiated,  and  protect  the  rights  of  all  parties 
thereto.  {I) 

The  complainant,  by  his  bill,  can  only  reach  the  property 
which  belonged  to  the  defendant  at  the  time  of  the  commence- 
ment of  the  suit,  or  the  proceeds  of  the  property  and  effects  in 
which  he  then  had  an  interest.  If  he  wishes  to  reach  after 
acquired  property,  he  must  file  a  supplemental  bill,  (m)  Upon 
this  principle  it  has  been  held,  that  the  complainant  in  a  credi- 
tor's bill  cannot  reach  the  salary  or  compensation  which  is  to 
become  due  to  the  defendant  at  a  future  time,  for  the  performance 
of  services  which  had  not  been  completed  at  the  time  of  filing 
the  bill,  in  a  case  where  the  defendant  would  have  no  legal 
or  equitable  right  to  demand  payment  for  the  services  already 
performed,  if  he  should  thereafter  neglect  to  complete  the 
unperformed  services,  {n)  Where  work  is  performed  by  the 
piece  or  lot,  the  wages  therefor  may  be  reached  by  a  creditor's 
bill,  filed  after  the  work  has  been  performed,  though  before  the 
customary  day  of  payment,  (o) 

The  interest  of  a  debtor,  under  a  contract  for  the  purchase  of 
land,  can  be  reached  by  a  creditor's  bill.  (j9)  So,  a  note  held 
by  a  defendant,  secured  by  a  deed  of  trust  on  land,  may  be 

(f)    Eager  vs.  Price,  2  Paige,  Ch.  R.  334. 

{k)    Chtte  vs.  Bool,  8  Paige,  Ch.  R.  83  ;  see  Craig  vs.  Hone,  2  Edw.  Ch.  554, 
{I)    Buekcock  vs.  Millard,  4  West.  Law  Mo.  314. 
(m)  Sainpson  vs.  Taylor,  cited  in  3  Barb.  Ch.  Pr.  153. 
{n)   Browning  vs.  Bettis,  8  Paige,  Ch.  569 ;  McConn  vs.  Doraheimer,  1 
Clarke,  144. 

((?)    Thompson  vs.  Nixon  3  Edw.  Ch.  457. 
{p)  Brewster  vs.  Poioer,  10  Paige,  Ch.'562. 


400  CREUi'JOirs    BILL. 

Parties  to  the  Bill  —  Complainants. 

subject  to  a  creditor's  bill,  and  the  land  conveyed  by  the  deed 
of  trust  be  sold  to  pay  it.  {q) 

Where  a  debtor  purchased  land  with  his  own  money,  and 
took  the  conveyance  in  the  name  of  his  infant  son,  for  the  pur- 
pose of  securing  the  land  against  his  debt,  it  was  held,  that  the 
creditor,  at  the  time  of  such  conveyance,  having  obtained  a 
judgment,  might,  by  bill  in  equity,  subject  the  land  to  his 
debt,  {r) 

SECTION  III. 

PAETIES   TO   THE   BILL. 

Complainants. — A  creditor  may  file  his  bill  in  his  own  name, 
for  his  own  benefit,  without  joining  other'  creditors ;  (s)  or  he 
may  file  a  bill  in  behalf  of  himself  and  all  others,  being  judg- 
ment creditors,  whose  executions  have  been  returned  unsatis- 
fied, and  who  may  choose  to  come  in  and  contribute  to  the 
exjiense  of  the  suit,  {t)  But  a  creditor  cannot  sue  on  behalf 
of  himself  and  others  who  have  no  common  interest  with 
him.  {u) 

Judgment  creditors,  who  have  exhausted  their  remedies  at 
law,  may  unite  in  a  bill  to  set  aside  a  fraudulent  assignment  by 
their  debtor,  (-y)  So,  if  one  creditor  by  judgment,  and  another 
by  decree,  have  acquired  liens  upon  the  property  of  their  debtor, 
they  may  join  in  filing  such  a  bill,  {^o)  But  as  to  property,  on 
which  no  creditor  has  obtained  a  lien  by  judgment  and  execu- 
tion, a  creditor  who  has  exhausted  his  legal  remedy  may  file  a 

{q)    Cohen  vs.  Carroll,  5  S.  &  M.  545. 

(r)  Bemaree  vs.  DriskeU,  3  Blackf.  115  ;  BeQWeigMman  vs. Hatch,  17  111. 
281 ;  Moritz  vs.  Hoffman,  35  111.  553 ;  Newman  vs.  Willetts,  52  111.  98 ;  Mugge 
vs.  Ewing,  54  111.  236. 

(«)    Balentine  vs.  Beall,  3  Scam.  203. 

{t)  Edmeston  vs.  Lyde,  1  Paige,  Ch.  637  ;  Wakeman  vs.  Orover,  4  Paige, 
Ch.  23 ;  Lentilhon  vs.  Moffat,  1  Edw.  Ch.  451. 

(ti)   Burney  vs.  Morgan,  1  Sim.  &  Stu.  358. 

(«)  Lentilhon  vs.  Moffat,  1  Edw.  Ch.  451 ;  BaUey  vs.  Burton,  8  Wend. 
889  ;  Dunyan  vs.  Vatlier,  3  Blackf.  245. 

{w)   Clarkaon  vs.  DePeyster,  3  Paige,  Ch.  320. 


OREDITOE'S  BILL.  401 

Parties  to  the  Bill  —  Defendants. 

bill  for  his  own  benefit  only,  without  making  other  creditors, 
standing  in  the  same  situation,  parties,  {x)  Other  creditors 
may  come  in  after  the  bill  has  been  filed ;  (y)  and  the  court 
should  call  in  all  the  creditors  of  the  estate  to  receive  divi- 
dends, (s) 

Where  the  plaintiff  in  a  judgment,  after  execution  thereon 
returned  unsatisfied,  assigns  the  judgment,  the  assignee  may 
file  a  bill  of  this  nature  in  his  own  name,  without  taking  out  a 
new  execution  after  the  assignment,  {a) 

Defendants. — It  is  a  general  rule  that  all  the  parties  against 
whom  the  judgment  was  recovered,  should  be  made  parties 
defendants  to  a  bill  of  this  nature,  {h)  But  if  one  of  them  is 
insolvent  and  wholly  destitute  of  property,  or  out  of  the  juris- 
diction of  the  court,  or  a  mere  surety  for  the  other  defendants, 
it  is  not  necessary  to  make  him  a  party.  These  facts  must, 
however,  be  distinctly  averred  in  the  bill,  or  the  defendants  may 
demur  for  want  of  parties,  {c)  Even  where  one  joint  debtor 
has  not  been  served  with  process  at  law,  it  is  proper  to  make 
him  a  party  to  the  bill ;  for  although  his  separate  property'' 
cannot  be  reached  directly,  yet  his  co-defendants,  if  compelled 
to  pay  the  debt,  may  claim  contribution,  (d) 

If  the  property  of  the  judgment  debtor,  against  whom  an. 
execution  has  been  returned  unsatisfied,  is  in  the  actual  pos- 

(x)  Wakemcni  vs.  Grover,  4  Paige,  Ch.  23;  McCalmont  vs.  Lairrinice,  1 
Blatchf.  C.  C.  R.  232:  Pennell  vs.  Lamar  Ins.  Co.,  73  111.  303. 

{y)  The  Bank  etc.  vs.  Dunyan,  2  Bland,  254  ;  see  Story's  Eq.  PI.  §  99-102 ; 
Myers  vs.  Fenn,  5  Wallace,  205. 

{z)  Kinney  vs.  Harvey,  2  Leigh,  70 ;  Williamson  vs.  Wilson,  1  Bland,  418 ; 
Bee  Brooks  vs.  Gibbons,  4  Paige,  Ch.  374  ;  Parmlee  vs.  Ecjan,  7  Paige,  Ch.  610  ; 
Birley  vs.  Staley,  5  Gill  &  J.  432  ;  Shubrick  vs.  Shubrick,  1  McCord,  Ch.  406 ; 
Wabash  &  Erie  Canal  Co.  vs.  Beers,  2  Black,  U.  S.  R.  448. 

(ffl)  Gleason  vs.  Gage,  7  Paige,  Ch.  121  ;  Strange  vs.  Longley,  3  Barb.  Ch^ 
R.  650  ;  see  to  the  contra,  Storms  vs.  Buggies,  1  Clarke,  148. 

(&)  Child  vs.  Brace,  4  Paige,  Ch.  R.  309  ;  Commercial  Bank  of  Lake  Erie 
vs.  Meach,  7  Paige,  Ch.  R.  449  ;  Spear  vs.  Campbell,  4  Scam.  424. 

{c)  Van  Gleef  vs.  Sickles,  5  Paige,  Ch.  505 ;  Commercial  Bank  of  Lake 
Erie  vs.  Meach,  7  Paige,  Ch.  R.  449. 

{d)  Id.  lb.;  2  Barb.  Ch.  Pr.  155;  see  Thomas,  Trustee,  vs.  Adams,  80 
111.37. 

26 


402  CREDITOR'S   BILL. 

Parties  to  the  Bill  —  Defendants. 

session  and  control  of  his  wife,  under  circumstances  which 
render  it  impossible  to  reach  and  obtain  possession  of  it  by  a 
creditor's  bill  filed  against  the  husband  alone,  it  seems  a  bill 
may  be  filed  against  her  and  her  husband  jointly,  so  as  to 
obtain  a  decree  which  will  reach  the  property  in  her  hands 
and  compel  her  to  deliver  it  up  for  the  satisfaction  of  her 
husband's  debts.  (<?) 

Judgment  creditors  are  necessary  parties  in  proceedings  to 
subject  lands  upon  which  they  have  liei^s  to  the  payment  of 
other  judgment  liens.  {/) 

If  a  debtor  has  conveyed  different  portions  of  his  property 
to  different  persons,  in  fraud  of  his  creditors,  all  the  grantees 
may  be  joined  in  one  bill  with  the  grantor,  {g)  So,  two  or 
more  persons  holding  the  property  of  the  judgment  debtor 
under  different  conveyances,  or  becoming  indebted  to  him  at 
different  times,  or  for  distinct  sums,  may  be  joined  with  him  as 
defendants  in  a  creditor's  bill,  (h) 

A  debtor  to  the  judgment  debtor  may  be  made  a  party  de- 
fendant to  a  creditor's  bill,  for  the  purpose  of  compelling  him 
to  pay  to  the  complainant  the  debt  which  he  owes  to  the  judg- 
ment debtor.  But  he  is  not  a  necessary  party;  and  he  is,  in 
general,  entitled  to  his  costs  out  of  the  fund  recovered.  If 
there  is  no  fund,  the  complainant  is  frequently  compelled  to 
pay  them  himself.  (^) 

Creditors  and  legatees  are  exceptions  to  the  general  rule 
requiring  all  persons  interested  in  the  subject  of  the  bill  to  be 
made  parties,  {j) 

{e)  Copous  vs.  Kauffman,  8  Paige,  Cli.  585 ;  see  Webster  vs.  Fohom,  58 
Maine,  230. 

(/)  Hoffman  vs.  Shields,' A  W.  Va.  490. 

(g)    Fellows  vs.  Fellows,  4  Cowen,  682. 

(h)    Boyd  vs.  Hoyt,  5  Paige,  Ch.  65,  77. 

(i)    Stafford  vs.  Mott,  3  Paige,  Ch.  100  ;  2  Barb.  Ch.  Pr.  156. 

(J)    Brown  vs.  Ricketts,  3  Johns.  Ch.  R.  558. 


CREDITOE'S   BILL.  403 

Priority  and  Lien  of  Bills. 


SECTION  IV. 
PKIORITY    AND    LIEN    OF    BILLS. 

The  filing  of  a  creditor's  bill,  or  at  least  the  service  of  pro- 
cess, gives  the  complainant  a  lien  upon  the  property  of  the 
judgment  debtor,  by  placing  it  under  the  control  of  the  court ; 
which  will  not  suffer  it  to  be  withdrawn,  so  as  to  defeat  the  object 
of  the  bill,  by  any  subsequent  act  or  title.  And  land  of  the 
debtor  sold  after  this  lien  attaches  will  be  taken  by  the  buyer  as 
a  lis  ^pendens  purchaser,  subject  to  the  lien  of  the  complainant.  (Tc) 

The  judgment  creditor  who  first  institutes  a  suit  obtains  a 
priority  over  the  creditors  in  relation  to  the  property  and  eftects 
of  the  defendant,  which  cannot  be  reached  by  execution  at 
law.  (J)  This  lien  is  not  obtained  by  the  return  of  an  execution 
unsatisfied,  but  by  the  commencement  of  a  suit  of  this  nature 
.founded  upon  such  return,  (m) 

The  mere  filing  of  a  bill  without  issuing  process  thereon, 
does  not  create  a  lien.  To  obtain  a  preference  as  to  the  equi- 
table assets  of  the  debtor,  the  creditor  must  follow  up  the  filing 
of  his  bill  b}^  the  service  of  his  process,  with  all  due  diligence. 
Therefore,  where  there  were  three  separate  l^ills  filed  against  a 
judgment  debtor,  at  different  times,  and  process  was  first  served 
in  the  third  suit,  upon  a  reference  as  to  priority  of  claim,  it  was 
held  that  the  complainant  in  the  third  suit  was  entitled  to  be 
first  paid  out  of  the  fund  in  the  hands  of  the  receiver,  {n) 

.  Several  bills  filed  by  creditors  of  the  same  estate,  to  subject 
it  to  their  debts,  may  be  consolidated,  (c) 

{k)  Newdigate  vs.  Lee,  9  Dana,  17,  20 ;  2  Barb.  Cli.  Pr.  157,  158 ;  Roberts 
vs.  Albany  &  West  Stockbridge  JR.  R.  Co.  25  Barb.  662. 

(I)  McCahnont  vs.  Latcrence,  1  Blatcbf.  C.  C.  E.  232 ;  Lyon  vs.  Robins, 
46  111.  276 ;  Cornivg  vs.  Wiite,  2  Paige,  Ch.  R.  567  ;  Albany  City  Bank  vs. 
SchermerJiorn,  1  Clarke,  297  ;  Boynton  vs.  Rawson,  Id.  584 ;  Garden  vs.  Lowell, 
21  Maine,  251 ;  Lucas  vs.  Atwood,  2  Stewart,  378. 

(m)  Edmeston  vs.  Lyde,  1  Paige,  Ch.  637  ;  Wakeman  vs.  Qrover,  4  Paige, 
Ch.  23. 

{n)  Boynton  vs.  Rawson,  1  Clarke,  584 ;  Burrell  vs.  Leslie,  6  Paige,  Ch. 
R.  445 ;  see  Commack  vs.  Johnson,  1  Green,  Ch.  163. 

(o)    Campbell's  Case,  2  Bland,  209  ;  see  Claiborne  vs.  Gross,  7  Leigh,  331. 


404  CREDITOE'S   BILL.      • 

Lien  of  —  Frame  of  Bill. 

The  filing  of  a  creditor's  bill  operates  as  an  attachment  ot 
property  which  cannot  be  levied  on  at  law.  It  gives  to  the 
vigilant  creditor  a  right  to  priority  in  payment ;  and  the  cred- 
itor who  files  the  second  bill  will  have  the  second  lien,  {p)  The 
lien  is  confined,  however,  to  the  choses  in  action  and  equitable 
assets  of  the  judgment  debtor,  and  does  not  attach  upon  his 
personal  property  tangible  by  execution,  {q) 

An  assignment  of  his  property  by  the  defendant,  after  the 
filing  of  a  creditor's  bill,  will  not  divest  the  lien  of  the  judg- 
ment creditor,  {r)  It  will  only  convey  the  property  to  the 
assignee  subject  to  the  lien  which  has  thus  attached,  {s) 

A  vendee,  whose  purchase  is  fraudulent  as  to  creditors,  hav- 
ing paid  off  a  prior  encumbrance,  and  the  sale  having  been 
subsequently  set  aside,  on  a  creditor's  bill,  cannot  recover  back 
the  money  paid  to  the  encumbrancer ;  the  payment  not  having 
been  made  under  a  mistake  of  fact,  but  a  mistake  of  law,  (J) 

SECTION  V. 
FRAME   OF   BILL. 

A  creditor's  bill  should  state  the  rendition  of  the  judgment^ 
the  court  and  term  in  which  it  was  recovered,  the  nature  of  the 
action,  the  names  of  the  parties,  and  the  amount  of  damages 
and  costs,  or  debt  and  damages. 

The  bill  must  also  aver  the  issuing  of  an  execution  upon  the 
judgment ;  {u)  the  amount  for  which  it  was  issued,  the  direction 
to  the  sheriff  and  its  delivery  to  him.  The  bill  must  show 
that  an  execution  was  issued  to  the  county  in  which  the  defend- 
ant resided  at  the  time  it  was  issued ;  or  state  some  sufiicient 
legal  excuse  for  issuing  the  execution  to  a  different  county,  (v) 

{p)   Corning  YB.WMte,  2  Paige,  Cli.  568. 

(5')  Albany  City  Bank  vs.  Schermerhorn,  1  Clarke,  297 ;  Edmeston  vs. 
Lyde,  1  Paige,  Ch.  687  ;  Eager  vs.  Price,  2  Paige,  Ch.  333. 

(r)    Edmeston  vs.  Lyde,  1  Paige,  Ch.  637. 

(«)     Corning  vs.  Wldte,  2  Paige,  Ch.  567. 

{t)  Milwaukee  &  Minn.  R.  R.  Co.  vs.  Sontter,  13  Wallace,  517 ;  see  Ex 
parte  Dunham,  29  Leg.  Int.  389. 

{u)    Cassidy  vs.  Meacham,  3  Paige,  Ch.  311. 

(b)    Reed  vs.  Wlieaton,  7  Paige,  Ch.  663 ;  Wilbur  vs.  Collier,  1  Clarke,  315. 


CREDITOR'S   BILL.  405 

Frame  of  Bill  —  Prayer  —  Swearing  to. 

The  bill  must  also  show  the  time  when  the  execution  was 
returnable,  and  the  actual  return  of  the  sheriff  thereon ;  {w) 
and  that  it  was  returned  unsatisfied  in  whole  or  in  part,  {x) 

The  bill  must  charge  that  the  defendant  has  some  property 
or  equitable  interests  or  things  in  action  which  ought  to  be 
applied  to  the  complainant's  judgment. 

If  a  creditor's  bill  is  filed  by  an  assignee  of  the  judgment,  he    "7 
should,  of  course,  state  the  assignment  to  him.     But  he  need 
not  state  the  consideration  of  the  assignment,  {y) 

A  bill  against  one  of  several  debtors  in  a  joint  judgment  for 
satisfaction  thereof,  must  negative  all  right  of  set-off  in  any  ot 
the  judgment  debtors;  (s)  and  must  show  that  there  is  no  coUu- 
lion  with  the  defendants,  or  either  of  them,  {a) 

A  judgment  creditor  may  demand  from  his  debtor  a  disclos- 
ure of  his  assets,  and  of  the  names  of  his  creditors  in  general 
.^rms.  (b) 

Prayer. — The  bill  contains  the  usual  prayer  for  process,  and 
that  the  defendant  may  answer  and  discover ;  and  in  addition, 
a  prayer  for  an  injunction  and  a  receiver. 

Swearing  to. — Under  the  New  York  practice,  creditor's  bills 
were  required  to  be  sworn  to  by  the  complainant,  or  in  case  of 
his  absence  from  the  state,  or  other  sufficient  cause  shown,  the 
oath  of  his  agent  or  attorney  was  held  sufficient,  (c)  If  an 
injunction  or  receiver  is  applied  for,  the  bill  must  be  sworn  to 
positively.  (cZ) 

{w)  Cassidy  vs.  Meachan,  3  Paige,  Ch.  311;  see  Mitchell  vs.  Byrns,  67  111. 
523. 

{x)  Pardee  vs.  BeGala,  7  Paige,  Ch.  132 ;  see  IsTimeal  vs.  Parker,  13  111. 
824;  Newman  vs.  WUletis,  52  111.  98. 

(y)  Oleason  vs.  Gage,  7  Paige,  Cli.  121. 

(2)  Van  Cleef  vs.  Sickles,  2  Edw.  Ch.  392. 

{a)  Conant  vs.  Sparks,  3  Edw.  Ch.  104. 

(6)  Miers  vs.  Zanesville  &  Maysville  Turnpike  Co.  11  Ohio,  273  ;  Cadwal- 
lader  vs.  Granville  Alexandrian  Society,  Id.  292. 

(c)  2  Barb.  Ch.  Pr.  165 ;  Sizer  vs.  Miller,  9  Paige,  Ch.  R.  605. 

(d)  Id.  I 


406  CEEDITOR'S   BILL. 


Form  of  Bill. 


No.  IJtS.     Creditor'' s  Ull. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting- : 

Your  orators,  A.  B.,  E.  F.  and  G.  H.,  of,  etc.,  partners  under 
the  name  and  style  of  B.  F.  &:  Co.,  respectfully  represent  unto 

your  honor,  that  at  the term,  18 — ,  of  the court  of  said 

county,  and  on,  etc.,  being  one  of  the  regular  days  of  said  term, 
your  orators  recovered  a  judgment  against  one  C.  D.,  one  of 

the  defendants  hereinafter  named,  for  the  sum  of dollars, 

damages  and  the  costs  of  suit,  whereof  the  said  C.  D.  stands 
convicted  ;  as  by  the  record  of  the  said  .judgment  in  the  office 
of  the  clerk  of  said  court,  reference  being  thereto  had,  will 
more  fully  appear. 

Your  orators  further  represent,  that  the  said  judgment 
remaining  in  full  force  and  effect,  and  the  damages  aforesaid 
unsatisfied,  your  orators,  on,  etc.,  for  the  purpose  of  obtaining 
satisfaction  of  the  said  judgment,  sued  and  prosecuted  out  of  the 
said  court,  a  writ  of  fieri  facias.,  directed  to  the  sheriff  of  the 

county  of ,  that  being  the  county  in  which  the  defendant 

C.  D.  resided  at  the  time  of  the  issuing  of  said  writ ;  by  which 
said  writ  the  said  sheriff  was  commanded,  that  of  the  goods, 
chattels,  lands  and  tenements  of  the  defendant  C.  D.  in  his 
county,  he  should  cause  to  be  made  the  said  sum  of  '        dollars, 

which  your  orators  in  the  said court  recovered  against  the 

said  C.  D.,  and  that  he  should  have  the  money  at  the  clerk's 
office  of  said  court,  at  ^^>t  ,  in  said  county,  in  iii»ety  days 
from  the  date  thereof,  to  satisfy  the  judgment  so  recovered  by 
your  orators  as  aforesaid,  and  that  he  should  have  then  and 
there  that  writ. 

And  your  orators  further  represent  that  the  said  writ  of 
fieri  facias^  before  the  delivery  thereof,  was  duly  indorsed,  and 
was  afterwards,  on,  etc.,  delivered  to  the  said  sheriff,  to  be  by 
him  executed  in  due  form  of  law. 

And  your  orators  further  represent,  that  the  said  sheriff,  on, 
etc.,  made  a  return  of  said  writ  with  an  indorsement  thereon, 
that,  etc.  {Here  insert  the  return  of  the  sheriff  ■)  as  by  the 
said  writ  oi  fieri  facias,  and  the  sheriff' 's  return  as  aforesaid, 
now  on  file  in  the  office  of  the  clerk  of  the  said  court, .will  more 
fully  appear. 

And  your  orators  further  represent,  that  the  said  judgment 
still  remains  in  full  force  and  effect,  not  reversed,  satisfied  or 
otherwise  vacated ;  that  there  is  now  actually  and  equitably 


CEEDITOE'S   BILL.  407 

Form  of  Bill. 

due   your   orators  upon  tlie  same,  the   sum    of dollars^ 

together  with  interest  thereon  from  the  date  of  the  rendition 
thereof,  over  and  al)ove  all  claims  of  the  defendant,  C.  D.,  by 
way  of  set-off,  or  othervvi -e. 

And  your  orators  further  represent,  that  at  the  time  of  the 
recovery  of  the  said  judgment,  against  the  defendant  C.  D.,  he 
the  said  C.  D.,  was,  and  for  several  years  previous  thereto  had 

been,  engaged  in  the  mercantile  business  at  the of ; 

and  your  orators  are  informed  and  believe  that  in  the  course  of 
the  said  mercantile  business  of  the  said  C.  D.  divers  persons 
became  indebted  to  him,  to  a  large  amount,  and  that  the  de- 
fendant C.  D.  has,  at  the  time  of  iillng  this  your  orators'  bill 
of  complaint,  debts  due  to  him,  and  for  which  he  holds  divers 
securities  and  evidences,  to  a  large  amount,  and  has  divers 
■goods,  wares  and  merchandise,  or  other  articles  of  personal 
property,  which  belong  to  him,  or  in  which  he  is  in  some  way 
or  manner  beneficially  interested,  aud  that  he  has  equitable 
interests  and  things  in  action  of  some  nature  or  kind,  which 
might  and  ought  to  be  applied  to  the  payment  of  your  orators^ 
said  judgment  against  him,  the  defendant  C.  D. 

And  your  orators  further  represent,  that  the  defendant  C. 
D.  is  the  owner  of,  or  in  some  way  or  manner  beneticially  in- 
terested in,  some  real  estate,  in  this  or  some  other  state  or  ter- 
ritory, or  some  chattels  real  of  some  name  or  kind,  or  some 
contract  or  agreement  relating  to  real  estate,  or  the  rents,  issues^ 
and  profits  of  some  real  estate  ;  and  also  that  the  defendant  C. 
D.  is  the  owner  of,  or  in  some  way  or  manner  beneficially  inter- 
ested in  the  stock  of  some  company,  incorporated  or  unincor- 
porated, or  in  the  profits  of  some  company  or  copartnership ; 
and  also  that  he  has  in  his  possession,  at  the  time  of  the  filing 
of  this  your  orators'  bill  of  complaint,  some  money  in  coin,  or 
bank  bills;  or  that  he  has  money  deposited  in  some  bank  or 
elsewhere,  to  his  credit ;  or  that  he  has  money  or  securities  for 
the  payment  of  money,  held  by  some  other  person  in  trust  or 
otherwise  for  his  benefit. 

And  if  the  defendant  C.  D.  has  made  any  sale,  transfer  or 
assignment  of  his  property  or  effects,  or  any  part  thereof,  your 
orators  expressly  charge  that  they  believe  such  sale,  transfer  or 
assignment  is  merely  colorable,  and  made  with  a  view  of  protect- 
ing the  property  or  effects  of  the  defendant  C.  D.  so  assigned,, 
and  placing  the  same  beyond  the  reach  of  your  orators'  said 
judgment,  and  enabling  the  defendant  C  D.  to  control  and 
enjoy  the  same,  and  the  avails  thereof;  and  that  it  would  so 
appear,  if  the  defendant  C.  D.  would  state  and  set  forth  when 
and  to  whom  such  sale,  transfer  or  assignment  was  made,  and 


408  CREDITOR'S   BILL. 

Form  of  Bill. 

what  was  the  amount  in  vahie,  of  the  property  or  effects  so 
assigned,  sold  or  transferred,  and  w^hat  were  the  terms  and  con- 
ditions upon  which  such  sale,  transfer  or  assignment  was  made, 
and  what  disposition  has  been  made  of  the  property  or  effects 
80  sold,  transferred  or  assigned,  and  in  whose  possession  the 
same  now  is,  or  what  has  been  done  with  the  avails  thereof. 
And  your  orators  claim  a  full  and  complete  discovery  of  all  such 
property,  effects  and  things  in  action,  belonging  to  the  defend- 
ant C.  D.,  and  of  all  trusts  whereby  any  property,  debts  or 
•other  effects  are  held  for  the  use  or  benefit  of  the  defendant  C. 
D.,  and  of  every  sale,  transfer  or  assignment  which  the  defend- 
ant C.  D.  has  made  of  his  property,  debts  or  other  effects,  and 
■of  the  person  or  persons  to  whom  such  assignment,  sale  or 
transfer  has  been  made,  the  amount  and  value  of  the  property, 
debts  or  other  eff'ects  so  assigned,  sold  or  transferred,  and  the 
trusts  or  other  conditions  upon  which  such  sale,  assignment  or 
transfer  was  made,  and  all  the  facts  and  circumstances  relating 
thereto  ;  and  particularly  what  is  the  situation  of  the  property, 
debts  or  other  effects  assigned  or  transferred,  at  the  time  of 
filing  this  your  orators'  bill  of  complaint. 

And  your  orators  further  represent,  that  they  have  reason  to 
believe,  and  do  believe,  and  so  charge  the  fact  to  be,  that  the 
defendant  C  D.  has  property,  debts,  and  other  equitable  inter- 
ests, things  in  action  or  effects,  of  the  value  of  more  than 

dollars,  exclusive  of  all  prior  just  claims  thereon,  and  which 
your  orators  have  been  unable  to  reach  by  execution  on  said 
judgment  against  the  defendant  C.  D. ;  and  that  this  your  ora- 
tors' bill  of  complaint  is  not  exhibited  by  colhision  with  the 
defendant  C  D.  or  with  any  other  person,  or  for  the  purpose  of 
protecting  the  property  or  effects  of  the  defendant  C.  D.  against 
the  claim  of  other  creditors,  but  for  the  sole  and  only  purpose 
of  compelling  payment  and  satisfaction  of  the  judgment  so  as 
aforesaid  recovered  by  your  orators  against  the  defendant  C.  D. 

And  your  orators  further  represent,  that  they  are  informed 
and  believe,  and  so  state  the  fact  to  be,  that  L.  M.,  IST.  O.,  P. 
Q.,  and  R.  S.,  of,  etc.,  other  parties  defendants  hereinafter 
named,  or  some  one  or  more  of  them,  have  in  their  possession 
or  control,  divers  goods,  wares,  and  merchandise,  and  other 
articles  of  personal  property,  which  belong  to  the  defendant  C. 
D.,  or  in  which  the  defendant  C.  D.  is  in  some  way  or  manner 
beneficially  interested  ;  or  that  they  or  some  of  them  have  in 
their  possession  or  under  their  control,  some  money,  stock, 
bonds,  promissory  notes,  bills  of  exchange,  judgments,  mort- 
gages, deeds  of  trust,  books  of  account,  del)ts,  evidences  of 
indebtedness  or  other  clioses  in  action,  which  tliey  or  some  of 


CREDITOR'S   BILL.  409 

Form  of  Bill. 

them  hold  in  trust  or  otherwise  for  tlie  use  and  benefit  of  the 
said  C.  D.,  or  in  which  he  is  in  some  way  or  manner  benefi- 
cially or  otherwise  interested  ;  or  that  they  or  some  of  them  liold 
in  trust  or  otlierwise,  for  the  defendant  C  D.,  some  real  estate 
in  this  or  some  other  state  or  territory ;  or  some  chattels  real 
of  some  kind ;  or  some  contract  or  agreement  relating  to  real 
estate ;  or  the  rents,  issues  and  profits  of  some  real  estate ;  or 
some  stock  of  some  company,  incorporated  or  unincoi'porated ; 
in  trust  for,  or  in  which  the  defendant  C.  D.  is  in  some  way  or 
manner  beneficially  or  otherwise  interested ;  and  that  it  would 
so  appear,  if  the  defendants  last  named,  would  each  for  himself, 
state  and  set  forth  everything  according  to  the  best  of  their 
knowledge,  information  and  belief,  relating  to  any  and  all  such 

Eroperty,  real  and  personal,  efi'ects,  choses  in  action,  etc.,  and 
ow,  and  upon  what  terms  and  conditions,  and  for  what  purpose, 
the  same  is  so  held  by  them,  and  all  the  facts  and  circumstances 
relating  thereto.  And  your  orators  claim  a  full  and  complete 
discovery  of  all  such  property,  effects  and  things  in  action,  held 
or  controlled  by  the  said  last  named  defendants,  or  by  any  or 
either  of  them,  in  trust  or  otlierwise,  for  the  benefit  of  the 
defendant  C.  D.  And  that  each  of  the  said  last  named  defend- 
ants shall  set  forth  and  state,  the  nature  and  description  of  any 
property,  efi'ects,  and  choses  in  action,  the  amount,  kind,  value 
and  particulars  thereof,  and  the  precise  tei'ms  and  conditions 
upon  which  the  same  are  so  held  and  controlled  by  them,  or 
an}^  or  either  of  them. 

{Here  insert  such  other  charges  as  the  nature  of  the  case  may 
seem  to  require^  and  if  any  other  i^ersons  are  sup^posed  to  have 
property ^  etc.,  in  their  possession  or  under  their  control  in  which 
the  defendant  is  interested,  charge  the  facts,  and  maTce  them 
parties.) 

And  your  orators  well  hoped,  that  the  defendant  C.  D. 
would  have  paid  to  your  orators  the  amount  due  to  them  on 
their  said  judgment,  or  would  have  applied  for  that  purpose 
any  property,  money,  debts  or  other  equitable  interests  or 
things  in  action  belonging  to  him,  or  in  which  he  is  in  any  way 
interested,  as  in  equity  and  good  conscience  he  ought  to  have 
done. 

But  now  so  it  is,  the  defendant  combining  and  confederating 
with  divers  other  persons,  to  your  orators  unknown,  but  whose 
names,  when  discovered,  they  pray  may  be  inserted  herein, 
with  proper  and  apt  words  to  charge  them,  and  contriving  how 
to  injure  and  defraud  your  orators  in  the  premises,  neglects 
and  refuses  to  pay  the  amount  so  due  to  your  orators  or.  their 
said   judgment,   or  to  apply  for  that   purpose    any  pro|)erty. 


410  CREDI'LYjjrS    BILL. 

Form  of  Bill. 

money,  debts,  or  other  equitable  interests  or  things  in  action, 
beh)nging  to  the  defendant  C.  D. ;  and  for  reason  whereof  the 
defendant  0.  D.  sets  np  a  variety  of  unfounded  pretenses.  All 
which  actings,  doings,  neglects  and  pretenses  are  contrary  to 
equity  and  good  conscience,  and  tend  to  the  manifest  wrong 
and  injury  of  j-our  orators  in  the  premises. 

Forasmuch,  therefore,  as  ycjr  orators  are  M'ithout  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  L.  M.,  N.  O.,  P.  Q.  and  R.  S._,  who  are  made 
parties  defendant  to  this  bill,  may  be  required  upon  their 
several  and  respective  corporal  oaths,  and  according  to  the  best 
and  utmost  of  their  several  and  respective  knowledge,  remem- 
brance, information  and  belief,  fnll,  true,  direct  and  perfect 
answer  make,  to  all  and  singular  the  matters  and  things  herein- 
before stated  and  charged,  as  fully  and  particularly  as  if  the 
same  were  here  again  repeated  and  tlie}^  severally  thereto  dis- 
tinctly interrogated  paragraph  by  paragraph,  and  especially  that 
they  may  each  set  forth  and  discover  the  nature  and  situation, 
amount  and  value  of  all  the  property,  interests  and  effects  of 
the  defendant  C.  D.,  including  all  things  in  action,  of  whatever 
nature  or  kind,  with  all  the  particulars  relating  thereto,  and 
that  they  may  severally  and  respectively  answer  and  state 
whether  at  the  time  of  filing  this  your  orators'  bill  of  complaint 
the  defendant  C.  D.  has  not  debts  due  to  him  to  a  considerable 
amount ;  and  if  so,  that  they  state  particuferly  the  amount  of 
such  debts  respectively,  and  from  whom  the  same  are  due,  and 
what  securities  are  held  therefor,  and  also  which  and  what 
amount  of  said  debts  are  good  and  collectable,  and  which  and 
what  amount  bad  and  doubtful ;  and  whether  at  the  time  of 
filing  this  your  orators'  bill  o^  complaint,  the  defendant  C.  D. 
had  not  or  has  not  now  some  property,  real  or  personal,  in  law  or 
equity,  belonging  to  him,  or  held  in, trust  for  him,  or  in  which 
he  has  some  beneficial  interest  of  some  kind  or  description, 
and  if  so,  that  they  may  severally  state  and  set  forth  a  full, 
true  and  particular  account  thereof,  and  the  nature  and  value 
of  his  interest  therein  ;  and  that  they  may  also  severally  state 
whether  the  defendant  C.  D.  has  not  money  of  some  kind  in 
his  possession,  or  under  his  control,  or  deposited  to  his  credit, 
or  for  his  use,  or  in  some  way  or  manner  held  for  his  benefit, 
and  if  so,  that  the  defendants  may  respectively  state  and  set 
forth  particularly  the  amount  thereof,  and  how  and  by  whom 
the  same  is  held  ;  and  that  the  defendants  may  severally  state 
whether  the  defendant  C.  I),  has  any  other  equitable  interests 
or  things  in  action.  (•!•  other  means  belonging  to  him,  or  in 
which  he  is  in  any  wdv  interested,  whereby  be  could  pay  any 


CEEDITOE'S   BILL.  411 

Form  of  Bill. 

part  of  the  amount  so,  as  aforesaid,  due  to  your  orators  upon 
their  said  judg-ment  against  the  defendant  C.  D. 

And  if  tlie  defendant  C.  D.  has  made  any  sale,  assignment 
or  transfer  of  his  property  and  effects,  or  any  part  thereof,  that 
then  the  defendants  may  severally  and  respectively  state  and 
set  forth  generally,  but  not  in  items,  what  property  or  effects 
have  been  so  sold,  assigned  or  transferred,  and  the  value  there- 
of, and  particularly  when,  and  to  wlioni,  and  for  what  purpose, 
and  upon  what  terms  and  conditions,  such  sale,  assignment  and 
transfer  was  made,  and  what  has  been  done  under  such  sale, 
assignment  or  transfer,  and  what  has  been  done  with  the  prop- 
erty or  effects  so  sold,  assigned  or  transferred,  and  the  avails 
thereof. 

And  that  the  defendants  ma}^  also  severally  answer  make  to 
Buch  of  the  several  interrogatories  hereinafter  numbered  and 
set  forth,  as  by  the  note  hereunder  written,  they  are  respectfully 
required  to  answer ;  that  is  to  say  : 

1.  Whether,  etc.,  etc. 

2.  Whether,  etc. 

3.  Whether  at  the  time  of  the  filing  of  this  bill  of  com- 
plaint you  had,  or  have  now,  in  your  possession,  custody  or 
charge,  any  lands,  tenements,  goods,  chattels,  moneys,  bonds, 
promissory  notes,  bills  of  exchange,  judgments,  mortgages, 
deeds  of  trust,  stocks,  choses  in  action,  credits  or  effects  of  any 
kind  or  nature  belonging  to  the  defendant  C.  D.,  or  in  which 
he  is  in  any  manner  directly  or  indirectly  l)eneficially  or  other- 
wise interested  ?  If  yea,  set  forth  fully  and  particularly  the 
kind,  number,  quantity  and  value  thereof  respectively  ;  and  state 
fully  the  terms  and  conditions  upon  which  the  same  are  so 
held. 

4.  Were  you  at  or  after  the  time  of  the  filing  of  this  bill  of 
complaint,  or  are  you  now,  in  any  manner  indebted  to  the 
said  C.  D.  ?  If  3'ea,  set  forth  fully  and  particularly  for  what, 
how,  and  to  what  amount  you  were  or  are  so  indebted  to  him. 

5.  Whether,  etc. 

And  that  the  defendant  C.  T>.  may  be  decreed  to  pay  your 
orators  the  amount  so  as  aforesaid  due  to  them  for  principal  and 
interest  on  their  said  judgment,  together  with  your  orators' 
costs  and  charges  in  this  behalf  sustained  ;  and  may  be  decreed 
to  apply  for  that  purpose  any  money  or  property  real  or  per- 
sonal, in  law  or  equity,  debts,  choses  in  action  or  equitable 
interests  belonging  to  him,  or  held  in  trust  for  him,  or  in  which 
he  is  in  any  way  or  manner  beneficially  interested ;  and  that 
the  defendant  C.  D.  may  be  enjoined  and  restrained  from  sell- 
ing, assigning,  transferring,  delivering,  negotiating,  discharging, 


412  CREDITOR'S   BILL. 

Form  of  Bill. 

receiving,  collecting,  encumbering,  or  in  any  way  or  manner 
disposing  of,  or  intermeddling  with,  any  debts  or  demands  due 
to  him,  or  any  bills,  bonds,  notes,  drafts,  checks,  book  accounts, 
mortgages,  judgments,  or  other  debts  due  to  him,  whether  in 
his  possession  or  held  by  some  other  person  in  trust  for  him,  or 
to  his  use  and  benefit ;  and  also  from  assigning,  transferring,  or 
in  any  manner  incumbering  or  disposing  of,  or  intermeddling 
w^ith,  any  money  in  coin,  bank  bills,  drafts  or  checks  belonging 
to  him,  whether  in  his  possession,  or  held  by  any  other  person 
in  trust  for  his  use  or  benefit ;  or  any  stock,  or  interest  in  any 
private  or  incorporated  company,  or  any  property,  real  or  per- 
sonal, things  in  action  or  chattels  real,  held  by  him,  or  by  any 
other  person  for  him,  or  in  which  he  has  any  interest  whatever, 
except  Mdiere  such  trust  has  been  created  by,  or  the  fund  so 
held  in  trust  has  proceeded  from  some  person  other  than  the 
defendant  C.  D.  And  that  the  defendant  C.  D.  may  also  be 
in  like  manner  prohibited  from  making  any  assignment  of  his 
property,  and  from  confessing  any  judgment  for  the  purpose  of 
giving  preference  to  any  other  creditor  over  your  orators,  and 
from  doing  any  other  act  to  enable  other  creditors  to  obtain  his 
property.  And  that  a  receiver  may  be  appointed,  according  to 
the  course  of  practice  of  this  court,  and  with  the  usual  powers 
of  receivers  in  like  cases,  of  all  the  property,  equitable  inter- 
ests, things  in  action,  and  effects  of  the  defendant  C.  T>.  And 
that  your  orators  may  have  such  other  and  further  relief  in  the 
premises  as  equity  may  require  and  to  your  honor  shall  seem 
meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 
chancery,  directed  to  the  sheriff  of  the  said  county  of ,  com- 
manding him  that  he  summon  the  defendants  C.  D.,  L.  M.,  ]S^. 
O.,  P.  Q.  and  R.  S.,  to  appear  before  the  said  court,  on  the  first 

day  of  the  next term  thereof,  to  be  held  at  the  court  house 

in ,  in   the  county   of aforesaid,  then  and  there  to 

answer  this  bill,  etc. 

And  may  it  please  your  honor  to  grant  unto  your  orators  the 
people's  writ  of  injunction,  to  be  directed  to  the  defendant  C. 
I).,  restraining  him,  his  agents  and  attorneys  from,  etc.,  {accord- 
ing to  the  prayer  of  the  hill,)  until  the  further  order  of  said 
court. 

,  Sol.  for  Complainants. 

State  of  ) 

County  of f 

A.  B.,  on  oatli  states,  that  he  is  one  of  the  complainants  in 
the  foregoing  bill  named,  and  has  heard  the  same  read,  and 


CREDITOE'S   BILL.  41» 

Form  of  Bill  in  Aid  of  Execution,  etc. 

knows  the  contents  thereof.  That  the  matters  and  things  in 
the  said  bill  contained  is  true  of  his  own  knowledge,  except  as 
to  those  matters  which  are  therein  stated  to  be  on  his  informa- 
tion and  belief,  and  as  to  those  matters  he  believes  it  to  be  true. 
Subscribed  and  sworn  to,  etc.  A.  B. 

Note. — The  defendants  are  each  required  to  answer  the  inter- 
rogatories in  the  foregoing  bill  of  complaint,  numbered  respec- 
tively 1,  2,  3,  4,  5,  etc.  The  defendant  CD.  is  required  to 
answer  all  of  said  interrogatories  except  the  3d  and  4th. 

,  Sol.  for  Complaina/nts. 

2^0.  H9.     Bill  in  aid  of  an  execution  to  remove  a  fraudulent 

conveyance. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Tour  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto 
your  honor,  that  on,  etc.,  your  orator  recovered  a  judgment  in 

the court,  of  the  county  of ,  in  this  state,  against  one 

C.  D.,  one  of  the  defendants  hereinafter  named,  for  the  sum 

of dollars,  damages,  and  the  costs  of  that  suit,  whereof 

the  said  C.  D.  stands  convicted,  as  by  the  record  of  the  said 
judgment,  in  the  office  of  the  clerk  of  the  said  court,  reference 
thereto  being  had,  will  more  fully  appear. 

Tour  orator  further  represents  that,  previous  to  the  time  of 
the  rendition  of  the  said  judgment,  the  defendant  C.  D.  was 
the  owner  in  fee  simple  of  the  following  described  real  estate,, 
to  wit :  {Here  insert  description.) 

Tour  orator  further  represents,  that  on,  etc.,  the  said  judg- 
ment remaining  in  full  force  and  effect,  and  the  damages  and 
costs  aforesaid  unsatisfied,  your  orator,  for  the  purpose  of 
obtaining  satisfaction  of  the  same,  caused  a  writ  oi  fieri  facias 
to  be  issued  and  delivered  to  the  sheriff  of  the  said  county  of 

,  where  the  defendant  C  D.  then  resided,  and  still  resides, 

and  the  said  real  estate  is  situated,  in  the  usual  form,  command- 
ing the  said  sheriff  that  of  the  goods,  chattels,  lands  and 
tenements  of  the  defendant  C.  D.,  in  his  county,  he  should 

cause  to  be  made  the  said  sura  of dollars,  which  your 

orator  in  the  said court  recovered  against  the  said  C.  D., 

and  he  should  have  the  money  at  the  clerk's  office  of  said 

court,  at  ,  in  said  county,  in ,  ninety  days  from  the 

date  thereof,  to  satisfy  the  judgment  so  recovered  by  your 
orator  as  aforesaid,  and  that  he  should  have  then  and  therfr 


414  CKEDITOR'S   BILL. 

Form  of  Bill  in  Aid  of  Execution,  etc. 

that  writ;  which  said  writ  oi  fieri  facias  was  duly  indorsed 
and,  on  the  same  day,  delivered  to  the  said  sheriff,  to  be  by 
him  executed  in  due  form  of  law. 

And  your  orator  further  represents,  that  the  said  execution  is 
still  in  the  hands  of  the  said  sheriff,  not  returned,  and  is  un- 
satisfied in  whole  or  in  part. 

Your  orator  further  represents,  that  prior  to  the  rendition 
of  the  said  judgment,  but  after  the  indebtedness  upon  which 
the  same  was  rendered  had  accrued,  to  wit,  on,  etc.,  the  defend- 
ant C.  D.  made  a  pretended  conveyance  in  fee  of  the  said 
described  real  estate  to  one  G.  H.,  another  defendant  herein- 
after named,  for  a  pretended  consideration  of dollars. 

And  your  orator  further  represents,  that  the  said  conveyance 
was  not  real,  but  was  a  mere  sham,  and  made  with  the  inten- 
tion of  defrauding  your  orator,  and  the  other  creditors  of  the 
said  C.  D.,  out  of  their  just  demands;  that  no  consideration 
was  paid  by  the  said  G.  H.  to  the  said  C.  D.  for  the  said  con- 
veyance ;  and  that  the  said  premises  are  now  held  by  the 
said  G.  H.  in  trust  for  the  said  C.  D.,  and  for  his  use  and 
benefit,  and  for  the  purpose  of  preventing  a  levy  and  sale  of 
the  same  under  and  by  virtue  of  said  execution. 

Your  orator  further  represents,  that  the  said  G.  H.  is  a  man ' 
of  no  pecuniary  responsibility,  and  is  possessed  of  little  or  no 
property  other  than  that  so  fraudulently  conveyed  to  him  as 
aforesaid,  and  is  in  embarrassed  circumstances,  and  involved 
and  largely  in  debt. 

Your  orator  further  represents,  that  the  said  C.  D.  has  no 
personal  or  real  estate  liable  to  levy  and  sale,  except  the 
premises  aforesaid,  on  which  the  said  sheriff  could  make  a 
levy  and  realize  the  amount  of  the  said  judgment  and  costs ; 
and  that,  although  the  said  sheriff  has  frequently  demanded  of 
the  said  C.  D.  to  pay  the  amount  due  upon  the  said  judgment 
or  that  he  turn  out  property  upon  which  he  could  make  a 
levy,  the  said  C.  D.  has  refused  to  pay  the  same,  or  turn  out 
property,  and  fraudulently  insists  that  he  has  neither  money 
nor  property  to  satisfy  the  same. 

Your  orator  further  represents,  that  the  said  judgment  still 
remains  in  full  force  and  effect,  not  reversed,  satisfied  or  other- 
wise vacated;  that  there  is  now  actually  and  equitably  due 

your  orator  upon  the  same  the  sum  of dollars,  together 

with  interest  thereon  from  the  date  of  the  entr}^  of  the  said 
judgment,  over  and  above  all  claims  of  the  said  C.  D.  by  way 
of  set-off  or  otherwise. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 


CKEDITOE"S   BILL.  415 

Form  of  Bill  in  Aid  of  Execution,  etc. 

the  said  C.  D.  and  G.  II.,  who  are  made  parties  defendant  to 
this  bill,  may  be  required  upon  their  several  and  respective 
corporal  oaths,  and  according  to  the  best  and  utmost  of  their 
several  and  respective  knowledge,  remembrance,  information 
and  belief,  full,  true,  direct  and  perfect  answer  make,  to  all  and 
singular  the  matters  and  things  hereinbefore  stated  and  charged, 
as  fully  and  particularly  as  if  the  same  were  here  again  repeat- 
ed and  they  severally  thereto  interrogated,  and  especially  that 
they  may  each  set  forth  and  state  the  facts  and  circumstances 
attending  the  said  conveyance,  the  amount  of  money  actually 
paid  thereon  by  the  said  G.  II.  to  the  said  C.  D.,  and  how  and 
in  what  manner  the  payments  were,  or  were  to  be  made,  from 
whence  the  said  G.  H.  derived  the  funds  with  which  to  make 
said  purchase,  and  the  purpose  of  said  conveyance ;  and  that 
the  defendants  may  also  severally  answer  make  to  such  of  the 
several  interrogatoi'ies  hereinafter  numbered,  as  by  the  note 
hereunder  written,  they  are  respectively  required  to  answer, 
that  is  to  say  : 

1.  Whether,  etc.  {Here  insert  as  many  interrogatories  as 
may  he  deemed  necessary.) 

And  that  upon  the  hearing  thereof,  the  said  conveyance, 
including  the  deed  thereof,  as  to  the  complainant,  be  set  aside, 
vacated  and  declared  null  and  void ;  that  an  injunction  be 
allowed,  restraining  the  said  defendants,  or  either  of  them,  from 
disposing  of,  transferring,  incumbering,  or  in  any  manner 
interfering  with  the  said  property,  or  any  part  thereof;  that  a 
receiver  be  appointed,  with  the  usual  powers  and  duties  of  a 
receiver ;  and  that  the  complainant  may  be  authorized  to  pro- 
ceed upon  his  said  writ  of  fieri  facias  issued  as  aforesaid,  or 
issue  another  writ  thereon,  as  it  may  be  deemed  necessary ; 
and  that  the  sheriff  of  said  county  thereupon  be  directed  to 
proceed  to  levy  upon,  advertise  and  sell  said  premises  for  the 
payment  and  satisfaction  of  your  orator's  said  judgment,  inter- 
est and  costs ;  and  that  your  orator*  may  have  such  other  and 
further  relief  in  the  premises  as  equity  may  require,  and  to 
your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  process,  and  for  an 
inju7iction,  and  add  affidavit  and  note,  as  in  the  last  form 
—No.  IJiS) 


416  CREDITOR'S   BILL. 

Form  of  Bill  against  Executrix,  etc. 

No.  150.     Bill  hy  creditor  against  executrix  of  a  deceased 

debtor. 

To  the  Honorable ,  Judge  of  the Court,  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  for  and  on  behalf  of  liim self  and 
all  other  creditors  of  C.  D.,  late  of,  etc.,  deceased,  who  shall 
come  in  and  contribute  to  the  expense  of  this  suit,  respectfully 
represents  unto  your  honor,  that  the  said  C.  D.,  deceased,  was 
in  his  lifetime,  and  at  the  time  of  his  decease,  indebted  to  your 

orator  in  the  sum  of dollars,  for  and  on  account  of,  etc., 

{Here  state  the  nature  of  the  indebtedness i)  which  said  sum  of 
dollars  still  remains  due  and  owing  to  your  orator. 

And  your  orator  further  represents,  that  the  said  C.  D.  was 
also  at  the  time  of  his  decease,  as  it  is  alleged,  indebted  to  cer- 
tain other  persons  by  specialty,  simple  contract  or  otherwise. 
And  that  the  said  C.  D.  being  so  indebted,  and  being  possessed 
of,  or  well  entitled  to,  considerable  real  and  personal  estate, 

departed  this  life  on  or  about  the day ,  18 — ,  having 

first  duly  made  and  published  his  last  will  and  testament  in 
writing,  bearing  date,  etc.,  and  thereby  gave  and  bequeathed 
all  his  estate  and  effects  in  the  words  and  manner  following, 
that  is  to  say  :  "  I  give  and  bequeath  unto  my  dear  wife  E.  D., 
all  my  estate,  real  and  personal,  and  effects  whatsoever,  and 
wheresoever  absolutely.  And  I  appoint  my  said  wife  executrix 
of  this  my  last  will  and  testament,  and  I  revoke  all  other  wills 
by  me  heretofore  made.  It  is  my  will  that  letters  testamentary 
issue  to  my  said  wife  without  it  being  required  of  her  to  enter 
into  bond  with  security  as  such  executrix."  And  your  orator 
further  represents,  that  the  said  testator  departed  this  life  with- 
out having  revoked  or  altered  his  said  will,  and  that  immedi- 
ately after  his  decease  the*  said  E.  D.  possessed  herself  of  a  con- 
siderable part  of  his  personal  estate  and  effects,  and  converted 
the  same  to  her  own  use,  and  entered  into  possession  of  his 
real  estate  and  receipt  of  the  rents  and  profits  thereof.  And 
that  afterwards,  on,  etc.,  the  said  E.  D.  duly  proved  the  said 

last  will  and  testament  in  the court  of  the  county  of 

aforesaid,  and  letters  testamentary  were  granted  to  her  by  said 
court,  without  requiring  her  to  enter  into  bond  with  a  good  and 
sufiicient  security  condition  according  to  law,  and  she  took  upon 
herself  the  burden  of  the  execution  thereof. 

And  your  orator  further  represents,  that  afterwards,  on,  etc., 
your  orator  presented  his  said  claim  before  the  said court, 


CREDITOE'S   BILL.  417 


Form  of  Bill  against  Executrix,  etc. 


and  the  same  was  then  and  there  duly  probated  and  allowed 

to  the  said  amount  of dollars,  by  that  court,  as  a  claim 

against  the  estate  of  the  said  C.  D.,  deceased,  as  a  debt  of  the 

class. 

Tour  orator  further  represents,  that  the  said  E.  D.,  immedi- 
ately after  the  proving  of  the  said  will,  and  the  issuing  of  the 
letters  testamentary  as  aforesaid,  possessed  herself  of  the  resi- 
due of  the  estate  and  eifects  of  the  said  testator,  to  a  very 
considerable  amount  and  value,  and,  together  with  the  eifects 
of  the  said  testator  so  possessed  and  converted  to  her  use  before 
that  time,  as  aforesaid,  much  more  than  sufficient  to  discharge 
and  satisfy  all  his  just  debts,  funeral  and  testamentary  ex- 
penses, but  that  the  said  E.  D.  has  not  yet  paid  or  satisfied  the 
debt  due  to  your  orator,  or  any  part  thereof,  and  the  same, 
together  with  some  other  of  the  debts  owing  by  the  said  C.  D. 
at  the  time  of  his  decease,  still  remain  unsatisfied.  And  the 
8aid  E.  D.,  having  as  aforesaid  possessed  assets  of  the  said 
C.  D.,  much  more  than  sufficient  to  satisfy  all  his  debts,  your 
orator  has  applied  to  and  requested  the  said  E.  D.  to  satisfy 
the  same  accordingly.  And  your  orator  well  hoped  that  the 
said  E.  D.  would  have  complied  with  such  request,  as  in  justice 
and  equity  she  ought  to  have  done.  But  now  so  it  is,  may  it 
please  your  honor,  that  the  said  E.  D.  combining  and  confed- 
erating with  divers  other  persons  at  present  unknown  to  your 
orator,  etc.,  refuses  to  pay  the  debt  of  your  orator,  and  alleges 
that  the  personal  estate  and  effects  of  which  the  said  C.  D., 
deceased,  was  possessed  of,  or  entitled  to,  at  the  time  of  hia 
decease,  and  which  have  come  to  her  hands,  or  to  the  hands  of 
any  person  or  persons  by  her  order,  or  for  her  use,  was  small  and 
inconsiderable,  and  has  already  been  exhausted  in  the  payment 
of  his  funeral  expenses,  and  debts  of  a  class  superior  and  prior  to 
that  of  your  orator,  and  other  creditors  having  claims  of  a  similar 
class  ;  and  that  nothing  now  remains  in  her  hands  of  the  assets 
of  the  said  C.  D.,  deceased,  with  which  to  pay  such  unsatisfied 
debts ;  and  she  wholly  refuses  to  sell  the  said  real  estate  or  any 
part  thereof,  for  the  purpose  of  paying  the  said  debts  from  the 
proceeds  thereof;  and  refuses  to  apply  the  rents  and  profits  of 
the  said  real  estate,  to  the  payment  of  said  demands,  but  applies 
and  converts  the  same  to  her  own  use,  and  refuses  in  any  man- 
ner to  account  for  the  same,  and  insists  that  she  is  now  the 
absolute  owner  of  all  such  real  estate,  and  the  personal  prop- 
erty now  in  her  hands ;  whereas  your  orator  charges  that  the 
contrary  of  such  pretenses  is  true,  and  that  upon  a  fair  account 
ing  with  respect  to  said  estate,  a  sufficient  sum  would  appear 
to  be  in  the  hands  of  the  said  E.  D.,  to  satisfy  all  said  debts. 


418  CREDITOR'S   BILL. 

Form  of  Bill  against  Executrix,  etc. 

rorasmiicli,  thei-efore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity,  and  to  the  end  that 
the  said  E.  D.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  and 
especially  that  she  may  set  forth  and  discover  the  nature, 
amount  and  value  of  all  the  property,  real  and  personal,  inter- 
ests and  effects  of  the  said  C.  D.,  deceased,  of  whatever  nature 
and  kind,  with  all  the  particulars  relating  thereto,  owned  by 
the  said  C.  D.  at  the  time  of  his  death,  and  which  came  into 
the  possession  or  control  of  the  defendant,  or  into  the  possession 
of  any  other  person  or  persons  for  her  use,  and  what  has  been 
done  with  the  same  or  the  avails  thereof;  and  that  the  defend- 
ant may  answer  make  to  the  several  interrogatories  hereinafter 
numbered  and  set  forth,  that  is  to  say : 

1.  Whether  you,  the  said  E.  D.,  did  not,  soon  after  the 
death  of  the  said  C.  D.,  take  possession  of  a  considerable  por- 
tion of  the  personal  property  and  effects  of  the  said  C.  D.,  and 
convert  the  same  to  your  own  use  ?  If  yea,  give  the  nature, 
amount  and  value  of  the  same,  and  state  what  has  been  done 
with  the  proceeds  or  avails  thereof. 

2.  Whether,  etc.  [and  so  on^  inse7'ting  such  interrogatories 
as  may  he  deemed  necessary.) 

And  tliat  an  account  may  be  taken  by  and  under  the  direc- 
tion of  this  honorable  court  of  the  real  and  personal  estate  of 
the  said  C.  D.,  deceased,  and.  of  the  debt  due  your  orator,  and 
of  the  debts  due  to  the  other  creditors  of  the  said  C.  D. 
remaining  unsatisfied  at  the  time  of  his  decease,  and  of  the 
rents  and  profits  of  his  real  estate,  which  have  been  possessed 
by,  or  come  to  the  hands  of,  the  defendant,  or  of  any  person 
or  persons  by  her  order  or  for  her  nse ;  and  that  the  real  and 
personal  estate  of  the  said  C.  D.,  or  so  much  thereof  as  remains 
unapplied  and  undisposed  of  may  be  applied,  in  the  first  place, 
in  or  towards  the  satisfaction  of  his  funeral  expenses,  in  case 
the  same  have  not  been  satisfied,  and  then,  etc.  (as  required  hy 
law  in  reference  to  'preference  j)  then  in  satisfaction  of  the 
debt  due  to  your  orator,  and  the  other  creditors  of  the  same 
class,  who  shall  come  in  in  like  manner  and  contribute  to  the 
expense  of  tliis  suit,  equally  and  share  alike  in  due  course  of 
administration ;  and  that  a  receiver  may  be  appointed  by  this 
honorable  court  to  collect  in  and  receive  the  outstanding  per- 
sonal estate  and  effects  belonging  to  the  said  C.  D.,  and  the 
rents  and  profits  of  his  real  estate;  and  that  the  defendant 
may  be  restrained,  by  the  injunction  of  this  honorable  court, 
from  receiving  the  rents  and  profits  of  his  real  estate,  and  from 
collecting  in  and   receiving   any   such   outstanding  personal 


CIIEDITOK'.S   BILL.  419 

Form  of  Order  appointing  Receiver,  etc. 

estate,  and  from  assigniTig,  selling,  or  parting  with  any  part  of 
the  personal  estate  and  effects  of  or  belonging  to  the  said  C.  D., 
now  in  the  custody  or  power  of  the  said  defendant,  or  in  the 
custody,  possession  or  power  of  any  persons  or  persons  in  trust 
for  her;  and  that  your  orator  may  have  such  other  and  further 
relief  in  the  premises  as  equity  may  require  and  to  your  honor 
shall  seem  meet. 

May  it  please  your  honor,  etc.  {Pray jprocess  (Mid  for  injunc- 
tion as  in  No.  IJfB,  ante,  p^ge  Jf-OG.) 

No.  151.     Order  appointing  a  receiver  in  a  creditor'' s  suit. 

{Proceed  as  in  No.  81,  ante,  page  W^,  to  the  asterisk*,  and 
continue :) 

It  is  ordered  that  E.  F.,  of,  etc.,  be  and  he  is  hereby  appointed 
receiver  of  the  estate  and  property,  real  and  personal,  things 
in  action,  debts,  equitable  interests,  and  other  effects  of  the  de- 
fendant C.  D.,  and  which  belonged  to,  or  were  held  in  trust  for 
him,  at  the  time  of  the  commencement  of  this  suit,  or  in  which 
he  had  any  benelicial  interest,  except  such  property  as  is  by 
law  exempt  from  execution ;  and,  also,  except  where  such  trust 
property  has,  in  good  faith,  been  created  by,  or  the  fund  so  held 
in  trust  has  proceeded  from  some  person  other  than  the  defend- 
ant C.  D.  himself,  and  of  the  real  estate  mentioned  and  de- 
scril)ed  in  the  complainant's  bill,  to  wit :  {Here  describe  it,) 
and  the  rents,  issues,  incomes  and  profits  thereof,  with  the  usual 
powers  and  duties  of  receiver,  upon  the  said  receiver  executing 
and  filing  with  the  clerk  of  this  court  a  bond  in  the  usual  form, 

to  the  people  of  this  state,  in  the  penal  sum  of dollars, 

with  sureties  to  be  approved  by  this  court.  And  it  is  further 
ordered  that  the  defendant  C.  I),  do  assign,  transfer  and  deli- 
ver to  said  receiver,  on  oath,  under  the  direction  of  the  master 
in  chancery,  all  such  property,  real  and  personal,  things  in 
action,  equitable  interests,^  and  other  eftects,  except  as  aforesaid, 
property  exempt  by  law  from  execution,  and  trust  property, 
where  the  trust  has  been  created  by,  or  trust  fund  proceeded 
from,  some  person,  in  good  faith,  other  than  the  defendant 
himself.  And  that  he  deliver  to  said  receiver,  in  like  manner, 
all  bills,  notes,  contracts,  books  of  account,  etc.,  and  other 
evidences  relating  thereto.  And  that  the  defendant  C.  D. 
execute  and  deliver  to  said  receiver,  under  the  direction  of  the 
said  master,  a  general  assignment  of  such  property  and  efi'ects ; 
and  also  execute,  acknowledge  and  deliver  to  said  receiver,  un- 
der the  direction  of  the  said  master,  a  conveyance  and  assign- 
ment of  the  real  estate  mentioned  in  said  bill,  and  hereinbefore 


420  CREDITOR'S   BILL. 


Order  of  Reference  —  Decree,  etc. 


described,  and  of  the  rents,  issues  and  profits  thereof.  And  that 
the  defendant  C.  D.,  and  his  tenants,  etc.,  attorn  to  the  said 
receiver,  and  pay  to  him  the  rents  and  profits,  and  that  the  said 
receiver  have  power  to  make  leases  of  such  real  estate,  from 
time  to  time,  not  exceeding  one  yeai',  as  he  may  deem  advisable. 
And  that  the  defendant  appear  before  the  said  master  in  chan- 
ery,  as  he  shall  be  summoned  or  required  to  do,  from  time  to 
time,  and  produce  such  books,  papers  and  accounts,  and  submit 
to  such  examination,  as  said  master  shall  direct  in  relation  to 
any  matter  which  he  may  be  lawfully  required  to  disclose. 

The  above  order  to  be  varied  to  conform  to  the  circumstances 
of  each  particular  case.  If  any  further  special  direction  or 
provision  is  desired,  insert  it  at  the  end  of  the  form. 

No.  WB.     Order  referring  creditor'' s  hill  to  master^  to  examine 
defendant  and  witnesses. 

{^Proceed  as  in  No.  81,  ante,  page  ^03,  to  the  asterisk*,  and 
proceed :) 

It  is  ordered  that  this  cause  be  referred  to  the  master  in 
chancery  of  this  court,  to  examine  the  defendant  C.  D.,  and 
such  witnesses  as  shall  be  produced  before  him  under  oath,  and 
upon  interrogatories,  concerning  the  property,  chattels,  things 
in  action,  equitable  interests,  and  effects  of  the  defendant,. 
C.  D.,  and  to  report  the  same  to  this  court  with  all  convenient 
speed  ;  and  that  the  defendant  C.  D.  do  appear  and  attend  from 
time  to  time,  and  when  summoned  or  required  so  to  do,  before 
said  master,  and  produce  such  books,  accounts  and  papers,  and 
submit  to  such  examination  as  the  said  master  shall  direct,  in 
relation  to  any  matter  which  he  may  lawfully  be  required  ta 
disclose ;  and  that  the  said  master,  or  either  party,  be  at  liberty 
to  apply  to  the  court  at  any  time  for  further  directions. 

No.  153.   Decree  that  complainants  debt  he  pcdd  out  offund» 

in  the  hands  of  the  receiver. 

{Caption,  and  title  of  cause  as  ^V^.  No.  79,  ante,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answers  of  the  defendants  thereto,  the- 
replication  of  the  complainant  to  such  answers,  and  the  report 
of  the  receiver  heretofore  appointed  in  this  cause,  and  the 
report  of  the  master  in  chancery,  to  whom  the  same  was 
referred  to  examine  the  defendant  and  other  witnesses  in  the 


CKEDITOR'S   BILL.  421 


Form  of  Decree. 


cause,  which  said  reports  are  each  hereby  approved  and  con- 
firmed ;  and  this  cause  having  been  argued  bv  the  counsel  for 
the  respective  parties ;  and  the  court  being  fully  advised  in  the 
premises,  doth  order.,  adjudge  and  decree.,  that  out  of  the 
moneys  in  the  hands  of  the  said  receiver,  collected  and  held  by 
him,  as  shown  by  his  said  report,  the  said  receiver,  after  deduct- 
ing his  charges  for  disbursements  and  commissions,  do  pay  the 
costs  of  this  suit,  to  be  taxed  by  the  clerk  of  this  court,  and 
out  of  the  residue  of  said  moneys,  he  pay  the  complainant  the 

amount  of  the  said  judgment,  to  wit,  the  sum  of dollars, 

■with  interest  thereon  from  the  time  the  said  judgment  was 

entered,  to  wit,  the day  of,  etc.,  and  that  he  take  from 

the  complainant  an  acknowledgment  of  satisfaction  of  said  judg- 
ment, and  deliver  the  same  to  the  defendant  C.  D.,  to  the  end 
that  said  judgment  may  be  canceled  and  discharged  of  record. 
{If  there  is  no  other  claimant  upon  the  fund  in  the  hands  of 
the  receiver.,  add:) 

And  it  is  further  ordered,  adjudged  and  decreed,  that  the  said 
receiver  do  pay  over  to  the  defendant  C  D.  the  residue  of  the 
moneys  so  remaining  in  his  hands,  or  account  with  him  for  the 
same,  and  deliver  to  him  all  and  singular  the  property  and 
effects,  books  of  account,  evidences  of  debt,  or  other  papers  or 
documents  relating  to  said  trust  estate,  on  demand  of  the 
defendant  C.  D. ;  and  also,  if  the  defendant  C.  D.  shall  so 
require,  that  the  said  receiver  execute  back  to  him  a  general 
release  and  assignment  of  all  and  singular  the  property,  equit- 
able interests  and  effects,  of  said  trust  estate,  remaining  in  his 
hands  undisposed  of.  On  which  assignment  and  delivery  being 
made,  it  is  adjudged  that  the  said  receiver  be  discharged  from 
his  said  trust. 

If  the  amount  in  the  receiver's  hands  is  not  sufficient  to  pay 
the  debt  and  costs,  the  decree  must  of  course  be  varied  to  meet 
the  facts,  and  will  merely  direct  the  receiver  to  pay  the  amount 
so  collected  upon  the  judgment,  and  take  the  complainant's 
receipt  therefor.  If  assets,  etc.,  remain  undisposed  of,  the 
court  may  direct  their  sale  and  application. 

If  there  are  other  claimants  upon  the  fund,  or  the  receiver- 
ship has  been  extended  over  the  property  in  a  subsequent  suit, 
the  court,  instead  of  ordering  the  surplus  to  be  paid  over  to  the 
-defendant,  will  direct  it  to  be  brought  into  court,  to  abide  its 
further  order. 


422  CEEDITOR'S   BILL. 

Form  of  Decree  in  Aid  of  Execution. 

No.  15 Jf-.     Decree  setting  aside  a  fraudulent  conveyance  in 
aid  of  an  execution. 

{Caption,  and-  title  of  cause  as  in  No.  79,  Sinte,page  198.) 

This  cause  coming  on  to  be  heard  upon  the  bill  of  complaint 
herein,  the  answers  of  the  defendants  thereto,  the  replication 
of  the  complainant  to  such  answers,  and  the  report  of  the  mas- 
ter in  chancery  to  whom  the  same  was  referred  to  take  proofs 
of  the  matters  alleged  in  the  bill,  which  said  report  is  hereby 
approved  and  confirmed;  and  the  court  having  heard  the 
arguments  of  the  counsel  of  the  respective  parties,  and  being 
fully  advised  in  the  premises,  doth  order  adjudge,  and  decree 
that  the  deed  of  conveyance,  bearing  date  on,  etc.,  made  and 
executed  by  the  defendant  C.  D.  to  G.  H.,  for  the  premises 
described  therein,  and  in  the  complainant's  bill,  to  wit:  {Here 
describe  the  premises^  be  and  the  same  is  hereby  set  aside  and 
vacated  and  declared  null  and  void,  and  of  no  effect  whatever, 
as  against  the  complainant. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the 
complainant  be  authorized  to  proceed  upon  his  writ  oi  fieri 

facias,  issued  upon  the  judgment  rendered  in  the court 

of  the  county  of aforesaid,  described  in  the  said  bill  of  com- 
plaint, wherein  he  is  plaintiff,  and  the  defendant  C.  D.  defend- 
ant, for dollars  and  costs;  or  issue  another  writ  oi  fieri 

facias  thereon,  if  it  be  necessary,  and  that  the  sheriff  of 
said  county  thereupon  proceed  to  levy  upon,  advertise  and  sell 
said  real  estate  for  the  payment  and  satisfaction  of  the  said 
judgment  interest  and  costs. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the 
defendant  C.  D.  pay  the  costs  of  this  proceeding  to  be  taxed 
•by  the  clerk  of  this  court ;  and  if  the  proceeds  of  the  sale  of 
the  said  premises  be  not  sufficient  to  pay  said  judgment,  inter- 
est and  costs,  and  the  costs  of  this  suit,  that  the  complainant 
have  further  execution  for  the  same  against  the  defendant  C.  D. 

For  additional  Illinois  eases  in  relation  to  creditor's  bills, 
see  Iliggins  vs.  Curtiss,  82  111.  28 ;  Lewis  vs.  Lamphere,  79 
111.  187;  Burham  vs.  Lamar  Ins.  Co.,  79  111.  160;  White  vs. 
Ilussell,1'd  111.  155;  Phel2?s  vs.  Curtis,  80  111.  109;  Gould 
vs.  Steinliiry,  84  111.  170. 


CHAPTER   XXX. 


PARTITION    SUITS. 


Section  1. 

Nature  of,  and  how  Instituted. 

2. 

Parties  to. 

3. 

Bill  or  Petition. 

4. 

Process  op  Appearance  in. 

5. 

Interpleader. 

6. 

Decree  for  Partition. 

7. 

Proceedings  by  Commissioners. 

8. 

Exceptions  to  Report  of  Commissioners. 

9. 

Decree  of  Sale. 

10. 

Exceptions  to  Report  op  Sale. 

11. 

Confirmation  op  Sale. 

SECTION  I. 
NATTJKE    OF,    AND    HOW    INSTITUTED. 

Partition  is  tlie  severance  of  common  or  undivided  interests. 
It  is  particularly  applied  to  interests  in  realty.  At  common 
law  lands  held  by  two  or  more  persons  were  held  by  them 
either  in  joint  tenancy,  in  common,  or  in  coparcenary.  The 
first  two  of  these  estates  were  created  by  the  act  of  the  parties. 
The  last  was  created  by  operation  of  the  law,  when  in  casting 
a  descent  it  devolved  a  single  estate  upon  two  or  more  heirs ; 
as,  for  example,  when  an  estate  in  fee  of  one  who  left  no  male 
succession,  passed  to  his  daughters  or  other  female  relatives. 
These  persons  were  called  coparceners.  Theirs  was  the  only 
joint  estate  of  which  the  common  law  would  compel  a  dissolu- 
tion at  the  request  of  a  single  party.  Joint  tenants  and  tenants 
in  common  became  so  by  their  own  mutual  agreement  and  act^ 
and  the  tenancy  could  be  justly  severed  only  by  their  mutual 
consent.  But  coparceners  are  rendered  so  by  operation  of  law^ 
and  lest  any  one  of  them  be  prejudiced  by  the  perverseness  ot 
his  fellows,  the  law  will  lend  its  aid,  if  he  ask  it,  and  help  him 
by  partition,  to  the  enjoyment  of  his  separate  interest. 


424  PARTITION   SUITS. 

Nature  of,  and  how  Instituted. 

In  the  reign  of  Henry  YIII,  (1527,)  and  of  William  lY, 
(1833,)  special  statutes  were  passed  extending  this  common  law- 
benefit,  which  hitherto  coparceners  alone  had  enjoyed,  to  joint 
tenants  and  tenants  in  common,  so  that  partition  then  became 
incident  to  all  estates  held  in  common. 

In  the  United  States  the  technical  joint  tenancy  is  quite 
obsolete ;  joint  ownership  being,  if  not  under  express  statute, 
yet  in  efi'ect,  only  tenancies  in  common.  So,  also  the  technical 
distinctions  between  estates  in  common  and  in  coparcenary 
have  lost  nearly  all  their  force.  Much,  therefore,  of  "  the 
cunning  learning  of  partition,"  as  it  exists  in  the  English  law, 
is  inapplicable  here.  Yet,  as  among  us,  real  property  generally 
passes,  on  the  death  of  an  ancestor,  to  more  persons  than  one, 
partition  still  retains  an  importance  in  respect  to  the  tenancies 
in  common  of  heirs  and  devisees. 

In  some  of  the  states  the  operation  of  tin's  remedy  is  extended 
by  statutes  beyond  the  limits  lixed  for  it  by  the  common  law, 
or  the  statute  of  Henry  YIII.  Partition  in  England  was  made 
either  by  mutual  consent  or  upon  compulsion.  In  the  latter 
case  the  relief  was  sought  either  by  a  writ  of  partition,  sued 
out  by  one  party,  at  common  law,  or  by  his  petition  to  the 
court  of  chancery. 

If  tlie  courts  of  law  ever  had  exclusive  jurisdiction  of  par- 
tition, as  it  is  sometimes  asserted,  it  must  have  been  at  a  very 
remote  period.  For  as  early  as  the  reign  of  Elizabeth,  (1571,) 
it  is  certain  that  chancery  took  cognizance  of  the  matter,  and 
in  modern  times  has  exercised  an  almost  exclusive  jurisdiction. 

There  is  good  reason,  in  most  of  the  states,  for  the  pi*eference 
of  chancery  courts  over  courts  at  law,  in  matters  of  partition  ; 
the  proceeding  at  law  being  regarded  as  far  less  effectual  than 
that  in  equity.  The  courts  of  law  are  generally  limited  to  a  mere 
allotment  according  to  the  proportional  shares  of  the  parties  in 
interest ;  and  this  often  causes  a  purely  mechanical,  and  some- 
time a  prejudicial,  division  of  an  estate.  But  chancery  is  not 
restricted  to  the  exact  balancing  of  equivalent  shares,  but  is 
capable  of  all  equitable  adjustments  of  the  matter,  and  may 
distribute  among  the  proprietors  tlie  separate,  though  unequal, 
parcels  of  the  estate,  assigning  to  the  several  parties  the  por- 


PARTITION   SUITS.  425 

Nature  of  —  Statute  of  Illinois. 

tions  which  will  best  suit  their  respective  condition,  equalizing 
such  a  partition  by  decreeing  pecuniar}'  compensation  to  be  made, 
or  in  other  cases  ordering  equitable  payments  by  some  for  im- 
provements made  in  the  common  property  of  others.  This 
jurisdiction  is  exercised  with  peculiar  litness  in  all  cases  where 
purely  equitable  rights,  conflicting  claims  of  parties,  or  modes 
of  enjoyment  are  to  be  adjusted,  {a) 

This  distinctive  feature,  favorable  to  equitable  procedure  in 
partition  cases,  is  measurably  avoided  in  Illinois,  by  the  act 
of  1874,  which  provides,  that  "  in  all  suits  for  the  partition  of 
real  estate,  whether  by  bill  in  chancery  or  by  petition  under 
this  act,  the  court  may  investigate  and  determine  all  questions 
of  conflicting  or  controverted  titles,  and  remove  clouds  upon 
the  titles  to  any  of  the  premises  sought  to  be  partitioned ; 
invest  titles  by  their  decrees,  in  the  parties  to  whom  the  prem- 
ises are  allotted,  without  the  forms  of  conveyances  by  infants 
or  unknown  heirs,  or  other  parties  to  the  suit ;  assign  dower, 
and  order  a  sale  of  the  premises,  for  the  purpose  of  dividing 
the  premises  in  proper  cases,  and  by  its  decree  invest  the  pur- 
chaser with  title,  and  apportion  incumbrances  among  the  parties 
to  whom  the  incumbered  premises  are  allotted."  (b) 

This  is  a  substantial  revision  of  the  acts  of  February  12, 
1861,  and  February  28,  1867.  (c) 

In  most,  if  not  all,  the  states  the  jurisdiction  of  the  courts 
in  relation  to  partition  suits  is  regulated  by  very  minute  stat- 
utory provisions,  and  to  these  reference  must  be  made  for  the 
particular  methods  of  procedure,  and  the  powers  of  court. 

In  Illinois,  the  first  section  of  the  act  of  1874,  to  revise  the 
law  in  relation  to  the  partition  of  real  estate,  provides :  "  that 
when  lands,  tenements  or  hereditaments  are  held  in  joint 
tenancy,  tenancy  in  common  or  coparcenary,  whether  such 
right  or  title  is  derived  by  purchase,  devise  or  descent,  or 
whether  any  or  all  of  the  claimants  are  minors  or  of  full  age, 

{a)  Gregory  \s.  Goim\  19  II].  608;  Walker  vs.  Laflin,  26  111.  472;  Wilton 
vs.  Tazewell,  86  111.  29;  Labldie  vs.  Hcwett,  85  111.  341. 

(6)    Rev.  Stat.  (1874)  753;  Rev.  Stat.  (1877)  710;   Henrkhsen  vs.  Huluen, 

m  111.  170. 

(c)    Laws  of  111.  1861.  p.  177;  Laws  of  1867. 


426  PARTITION    ^THTS. 

Parties  to  —  Complainant  or  Petitioner. 

any  one  or  more  of  tlie  persons  interested  therein  may  compel 
a  partition  tliereof  by  bill  in  chancery,  as  heretofore,  or  by 
petition  in  the  circuit  conrt  of  the  proper  county,  or  if  the  pro- 
ceeding is  in  the  county  of  Cook,  in  the  circuit  or  superior 
court  of  said  county."' 

Section  25  provides,  that : 

"  If  a  person  to  whom  any  share  has  been  allotted  is  evicted 
by  a  person  who,  at  the  time  of  the  partition,  had  a  title  older 
and  better  than  the  titles  of  those  who  were  parties  to  the  suit, 
the  person  so  evicted  may  have  a  new  partition  of  the  residue, 
as  if  no  partition  had  been  made,  if  such  new  partition  can  be 
justly  made,  or  he  may  have  contribution  from  the  others,  so 
as  to  make  his  share,  just  and  equal  with  the  others,  according 
to  his  rights  in  the  premises." 

SECTION  II. 
PARTIES   TO. 

ComplaiMCLnt  or  petitione7\ — A  party  seekmg  a  partition  of 
land  must  have  some  interest  in  it.  A  person  who  is  a  mere 
guardian  of  an  infant  owner,  cannot  maintain  the  suit.  In 
such  case  the  proceeding  must  be  brought  in  the  name  of  the 
ward,  by  the  guardian,  {d) 

•  The  statute  provides,  that  "  infants  may  petition  by  guardian, 
or  next  friend,  and  other  persons  under  guardianship,  by  their 
conservators."  {e) 

As  a  general  rule,  courts  will  refuse  to  make  partition  of 
land  between  parties  claiming  to  be  tenants  in  common,  unless 
it  clearly  appears  that  the  several  persons  claiming  to  be 
owners  hold  title  to  the  premises.  {/)  So,  where  the  party 
shows  merely  &  prima  facie  title,  arising  under  color  of  title, 
possession  and  payment  of  taxes  for  seven  years,  he  cannot 
obtain  a  partition.     But  he   might   no   doubt  file   a   bill   in 

{d)   Bowles  vs.  McAllen,  16  111.  30. 
(e)    Rev.  Stat.  (1874)  749;  Rev.  Stat.  (1877)  707. 

(/)  Rossv^.  Cobh,  48  111.  Ill;  Schneider  vs.  Seibert,  50  111.  284;  Williams 
vs.   Wlggand.  53  Kl.  233 


PARTITION   SUITS.  427 

Parties  to  —  Complainants,  etc.  —  Defendants. 

chancery  against  those  claiming  adversely,  making  them  and 
the  otlier  tenants  in  coinmon  parties,  and  have  such  adverse 
claim  removed,  as  a  cloud  upon  his  title,  and  then  obtain  a 
partition,  [g) 

A  remainder  man,  or  reversioner  in  fee,  of  an  undivided 
interest  in  lands  may  maintain  a  suit  for  partition  against  the 
owner  of  the  remaining  undivided  interest  in  remainder,  the 
whole  premises  being  subject  to  a  life  estate  in  another,  and 
unexpired.  (Ji)  But  a  suit  cannot  be  maintained  by  a  person 
who  has  merely  a  future  contingent  interest  in  an  undivided 
share  of  the  property.  (^) 

A  partition  of  lands  among  several  joint  owners  will  not  be 
made,  unless  those  by  whom  the  partition  is  sought  have  a 
legal  title  to  the  portions  claimed  by  them.  A  party  who  has 
a  mere  equitable  right  to  a  conveyance  of  an  undivided  inter- 
est is  not  in  a  position  to  ask  a  partition,  {j) 

Defendants. — The  statute  of  Illinois  requires  that  "  Every 
person  having  any  interest,  whether  in  possession  or  otlierwise, 
and  who  is  not  a  petitioner,  shall  be  made  a  defendant  to  such 
petition." 

Previous  to  the  revised  statute,  it  has  been  held  that  neither 
a  mortgage  nor  a  judgment  creditor  was  a  proper  party  to  a 
partition  suit,  and  that  their  rights  could  not  be  affected  by  a 
sale  of  the  lands ;  {¥)  but  inasmuch  as  the  statutes  have  author- 
ized the  court  to  decree  a  sale,  which  will  giye  a  purchaser  a 
perfect  title,  or  to  apportion  encumbrances  among  the  parties 
to  whom  the  encumbered  portion  is  allotted,  it  is  necessary 
that  all  encumbrancers  should  be  made  parties.  {I) 

All  persons  having  an  interest  in  the  subject  matter  of  the 

{g)    Ross  \s.  Cohh AS  IW.m. 

(h)   Scoville  vs.  Billiard,  48  111.  453  ;  Hilliard  vs.  Scoville,  52  111.  449. 

(t)     Striker  vs.  Mott,  2  Paige,  Cli.  387. 

(j)  Williams  vs.  Wiggand,  53  111.  233  ;  see  Leverton  vs.  Waters,  7  Coldw. 
Tenn.  20  ;  Oourlcy  vs.  Woodbury,  43  Vt.  89. 

{k)  Wclton  vs.  Copeland,  1  Johns.  Ch.  140  ;  Sebring  vs.  Mersereau,  Hopk. 
Ch.  501 ;  Haricood  vs.  Kii-hp,  1  Paige,  Ch.  469. 

(I)    Loomis  vs.  Riley,  24  111.  307  ;  see  Kilgour  vs.  Crawford,  51  111.  249. 


428  PARTITION   SUITS. 

Parties  to,  etc.  —  Bill  or  Petition,  etc. 

proceedings  must  be  made  parties,  or  they  will  not  be  bound 
by  the  judgment,  except  as  a  color  of  title  under  the  statute 
of  limitations,  (m) 

Unknown  defendants. — The  statute  of  Illinois  provides 
that  "  "When  there  are  any  persons  interested  in  the  premises 
whose  names  are  unknown,  or  the  share  or  quantity  of  interest 
of  any  of  the  parties  is  unknown  to  the  petitioner,  or  where 
such  share  or  interest  shall  be  uncertain  or  contingent,  or  the 
ownership  of  the  inheritance  shall  depend  upon  an  executory 
devise,  or  the  remainder  shall  be  contingent,  so  that  such 
parties  cannot  be  named,  the  same  shall  be  so  stated  in  the 
petition. 

"  All  persons  interested  in  the  premises  in  which  partition 
is  sought  to  be  made  according  to  the  provisions  of  this  chap- 
ter, whose  names  are  unknown,  may  be  made  parties  to  such 
petition  by  the  name  and  description  of  unknown  owners  of 
the  premises,  or  as  the  unknown  heirs  of  any  person  who  may 
have  been  interested  in  the  same." 

Purchaser  pedente  lite. — A  purchaser  from  one  of  the 
parties  to  a  pending  suit  for  partition  acquires  his  interest  in 
the  property,  subject  to  such  decree  as  may  be  rendered  on  the 
hearing.  Thus  a  mortgagee  is  limited  to  that  portion  allotted 
to  his  mortgagor,  {n) 


SECTION   III. 
BILL    OK    PETITION. 

Form  of  jpetition. — The  5th  section  of  the  statute  of  Illinois 
provides  that,  "the  petitioner  shall  particularly  describe  the 
premises  sought  to  be  divided,  and  shall  set  forth  the  interests 
of  all  parties  interested  therein,  so  far  as  the  same  are  known 

{m)  Hassett  vs.  Ridgely,  49  111.  197;  see  Eester  vs.  Stark,  19  111.  328; 
Hickenbotham  vs.  Blackledge,  54  111.  316. 

(«)  Loomis  vs.  Riley,  24  111.  307 ;  see  Jackson  vs.  Warren,  32  111.  331 , 
Dickson  vs.  Todd,  43  111.  504;  Roberts  vs.  Fleming,  53  111.  196;  see  Smith 
vs.  Cratvford,  81  111.  296. 


PARTITION   SUITS.  429 

Bill  or  Petition  — Form  of  Bill. 

to  the  petitioners,  including  tenants  for  years,  for  life,  by  the 
courtesy  or  in  dower,  and  of  all  persons  entitled  to  the  rever- 
sion, remainder  or  inheritance,  and  of  every  person  who,  upon 
any  contingency,  may  be  or  become  entitled  to  any  beneficiary 
interest  in  the  premises,  so  far  as  the  same  are  known  to  the 
petitioners,  and  shall  pray  for  the  division  and  partition  of  the 
premises  according  to  the  respective  rights  of  the  parties  inter- 
ested therein,  or  that  if  a  division  and  partition  of  the  same 
cannot  be  made  without  manifest  prejudice  to  the  owners,  a 
sale  thereof  shall  be  made,  and  the  proceeds  divided  according 
to  the  respective  rights  of  the  parties ;  and  such  petition  shall 
be  verified  by  affidavit. 

"  The  petitioner  may,  in  his  petition,  require  the  defendants, 
or  any  of  them,  to  answer  his  petition  on  oath,  in  which  case 
the  answer  shall  have  the  same  effect  as  an  answer  in  chancery 
under  oath."  (<?) 

The  particular  matters  required  by  the  statute  to  be  stated 
in  a  petition  for  partition,  should  be  set  forth,  {p) 

Ifo.  155.     Bill  for  partition  hetween  two  heirs,  subject  to 
widoid's  dower. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Tour  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  B.  B,,  late  of,  etc.,  deceased,  the  lather  of  your  ora- 
tor, was  in  his  lifetime,  and  at  the  time  of  his  death,  the  owner, 
and  seized  in  fee  simple  of  the  following  described  real  estate, 
to  wit :     {Here  describe  the  pi^emises.) 

Your  orator  further  represents,  that  the  said  B.  B.  being  so 
seized  of  the  said  real  estate,  on  or  about,  etc.,  departed  this 
life,  intestate,  leaving  C.  B.,  his  widow,  and  your  orator  and 
D.  B.,  his  sons,  and  only  heirs  at  law. 

And  3'our  orator  further  represents,  that  by  the  death  of  the 
said  B.  B.,  your  orator  and  the  said  D.  B.  became  seized  in  fee  as 
tenants  in  common,  by  descent  from  the  said  B.  B.,  of  the  said 
described  premises ;  that  is  to  say,  your  orator  and  the  said 

(o)  Rev.  Stat.  (1874)  750;  Rev.  Stat.  (1877)  708;  Louvalle  vs.  Menard,  1 
Gilm.  69. 

{p)  Ripple  vs.  Gilbourne,  8  How.  U.  S.  458. 


430  t.^RTITION   SUITS. 


Form  of  Bill. 


D.  B.  each  became  seized  of  the  one  equal  undivided  half  part 
of  the  said  premises,  each  of  the  said  portions  being  subject, 
however,  to  the  right  of  dower  of  the  said  C.  B.,  widow  of  the 
said  B.  B. 

And  your  orator  further  represents,  that  the  dower  of  the 
said  widow,  in  the  said  described  premises,  has  never  been 
admeasured,  or  in  any  way  set  apart  to  her  from  the  estate  of 
the  said  B.  B. 

Your  orator  further  represents,  that  no  person  or  persons, 
other  than  your  orator  and  the  said  D.  B.  and  C.  B.,  have  any 
int'erest  in,  or  title  to,  the  said  described  premises,  or  any  part 
thereof,  in  possession,  remainder,  reversion  or  otherwise. 

Your  orator  further  represents,  that  he  is  desirous  that  a  par- 
tition or  division  should  be  made  of  the  said  several  parcels  of 
land,  between  your  orator  and  the  said  D.  B.,  according  to  their 
respective  rights,  estates  and  interests  therein  ;  or  in  case  the 
same  cannot  be  divided  and  partitioned  without  material  injury 
to  the  parties  interested  therein,  then  that  the  same  may  be  sold, 
and  the  proceeds  thereof  divided  among  such  parties,  accord- 
ing to  their  respective  rights  and  interests. 

Your  orator  further  represents,  that  he  has  frequently  applied 
to  the  said  D.  B.,  and  requested  him  to  come  to  an  equitable 
and  just  division  and  partition  of  the  said  described  premises, 
between  your  orator  and  the  said  D.  B.,  or  in  case  they  cannot 
agree  upon  an  amical  division,  that  they  join  in  making  sale 
of  the  said  premises,  and  divide  the  proceeds  thereof;  but  so  it 
is,  may  it  please  your  honor,  the  said  D.  B.  wholly  refuses  to 
join  in  any  just  and  equitable  division  or  partition  of  the 
said  described  premises,  or  to  join  in  the  sale  thereof,  as  afore- 
said. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  D.  B.  and  C.  B.,  who  are  made  parties  defendant  to 
this  bill,  may  be  required  to  make  full  and  direct  answer  to  the 
same,  but  not  under  oath.,  the  answer  under  oath  heing  hereby 
waived  ;  and  that  division  and  partition  of  the  above  described 
premises  may  be  made  between  the  parties,  according  to  the 
course  of  practice  in  this  court,  and  the  statute  in  such  case 
made  and  provided,  and  according  to  the  respective  rights  of 
the  parties  interested  therein,  subject  to  the  widow's  dower,  as 
aforesaid ;  and  in  case  it  shall  appear  that  a  partition  thereof 
cannot  be  made  without  manifest  injury  to  the  rights  of  the 
parties  therein,  then  that  the  said  premises  may  be  decreed  to 
be  Gold  under  the  direction  of  this  court,  and  the  proceeds  of 
the  sale,  after  paying  the  costs  and  charges  of  this  suit,  be 


PARTITION   SUITS.  431 

Form  of  Bill, 

divided  among  the  said  parties,  according  to  their  respective 
rights  and  interests  therein.  And  that  the  rights  and  interests 
of  the  said  parties  in  the  premises,  or  in  the  proceeds  thereof, 
may  be  ascertained  and  declared^  by  the  court ;  and  that  your 
orator  may  have  such  other  and  further  i-elief  in  the  premises, 
as  equity  may  require,  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 
chancery,  directed  to  the  sheriff  of  the  said  county  of com- 
manding him  that  he  summon  the  defendants  D.  B.  and  C.  T>. 
to  appear  before  the  said  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in ,  in 

the  county  of aforesaid,  then  and  there  to  answer  this  bill, 

etc. 

{Add  affidavit) 

No.  156.     Bill  for  partition. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator  and  oratrix,  A.  B.  and  B.  B.,  his  wife,  of,  etc., 
respectfully  represents  unto  your  honor,  that  E.  F.,  the  father 
of  your  oratrix,  B.  B.,  and  late  of,  etc.,  now  deceased,  was,  at 
the  time  of  making  his  last  will  and  testament,  and  also,  at  the 
time  of  his  death,  seized  in  fee  simple,  and  possessed  of  all  the 
following  described  real  estate,  to  wit :  {Here  describe  the  prem- 
ises ;)  and  being  so  seized  and  possessed  as  aforesaid,  the  said 
E.  F.  departed  tliis  life  on  or  about  the,  etc. 

And  your  orator  and  oratrix  further  represent,  that  the  said 
E.  F.,  in  his  lifetime,  to  wit,  on  or  about  the,  etc.,  made  and 
published  his  last  will  and  testament  in  due  form  of  law,  and 
duly  authenticated  to  pass  real  estate ;  and  in  and  by  the  said 
last  will  and  testament,  the  said  testator  did,  among  other 
things,  give,  devise  and  bequeath  unto  his  son,  A.  F.,  and  to 
his  heirs  forever,  all  of  the  above  described  premises,  subject  to 
a  life  estate  therein  of  his  mother,  B.  F.,  the  widow  of  the  said 
E.  F..;  as  will  more  fully  appear  by  the  said  will,  when  pro- 
duced, and  by  a  copy  thereof,  hereto  attached,  marked  "  Exhibit 
A,"  and  made  a  part  of  this  bill. 

Your  orator  and  oratrix  further  represent,  that  the  said  last 
will  and  testament  of  the  said  E.  F.,  was  afterwards,  on,  etc., 

duly  proved  and  probated  by  the court  of,   etc.,  as  will 

more  fully  appear  by  the  record  thereof,  in  the  office  of  the 
clerk  of  said court,  i-eference  thereto  being  had. 

Your  orator  and  oratrix  further  represent,  that  the  said  A. 


432  PAKTITION   SUITS. 

Form  of  Bill. 

F.,  on,  etc.,  departed  this  life  intestate  and  without  lawful  issue ; 
leaving  your  oratrix,  the  said  B.  B.,  wife  of  your  orator,  A.  B., 
S.  M.,  widow  of  C.  M.,  deceased,  J.  B.,  C.  I),  and  M.  W.,  his 
only  heirs  at  law  him  surviving. 

And  your  orator  and  orati'ix  further  represent,  that  the  said 
B.  F.,  widow  of  the  said  E.  F.,  the  testator  aforesaid,  departed 
this  life  on  or  about,  etc. ;  and  that  by  means  of  the  deaths  of 
the  said  A.  F.  and  B.  F.,  as  aforesaid,  the  said  described  prem- 
ises became  and  was  vested  in  your  oratrix,  S.  M.,  widow  of  C. 
M.,  deceased,  J.  B.,  C.  D.  and  M.  W.,  the  only  heirs  at  law  of 
the  said  A.  F.,  as  tenants  in  common  in  fee. 

Your  orator  and  oratrix  further  represent,  that  on,  etc.,  and 
subsequent  to  the  death  of  the  said  A.  F.,  the  said  J.  B.  and  S. 
B.,  his  wife,  by  their  certain  deed,  executed  and  acknowledged 
in  due  form  of  law,  to  pass  the  title  to  real  estate,  did  remise, 
release,  and  quit-claim  unto  your  orator  all  their  right,  title  and 
interest  of,  in  and  to  the  aforesaid  described  premises ;  as  by 
the  said  deed,  when  produced,  will  more  fully  appear. 

And  your  orator  and  oratrix  further  represent  unto  your 
honor,  that  the  several  parties  to  this  suit  are  seized  in  fee  sim- 
ple, and  entitled  to  the  said  described  premises,  as  tenants  in 
common  ;  and  that  their  rights  and  interests  therein  are  as  fol- 
lows, to  wit :  your  orator,  A.  B.,  as  the  grantee  of  the  said  J. 

B.,  is  seized  of  and  entitled  to  an  undivided part  thereof  j 

that  your  oratrix,  B.  B.,  in  her  own  right,  is  also  seized  of,  and 

entitled  to  an  undivided part  thereof,  etc.     {S^ere  set  forth 

the  interests  of  all  the  parties}) 

Tour  orator  and  oratrix  further  represent,  that  the  aforesaid 
premises  is  the  only  real  estate  owned  in  common  by  the  par- 
ties to  this  suit ;  and  that  no  other  person  or  persons,  than  the 
parties  above  named,  have  any  interest  in,  or  title  to,  the  said 
described  premises,  or  any  part  thereof,  in  possession,  remainder^ 
reversion  or  otherwise. 

And  your  orator  and  oratrix  further  represent,  that  they  are 
desirous  that  a  division  or  partition  of  the  said  described  prem- 
ises should  be  made  among  the  several  parties  seized  of,  or  en- 
titled thereto,  according  to  their  respective  rights  and  interests 
therein ;  and  in  case  the  same  cannot  be  divided  among  the 
owners  thereof,  without  manifest  injury  or  prejudice  to  the 
parties  interested  therein,  that  then  the  same  may  be  sold,  and 
the  proceeds  thereof  divided  among  such  parties,  according  to 
their  respective  rights  and  interests ;  and  for  that  purpose  have 
made  frequent  applications  to  the  other  owners  thereof.  And 
your  orator  and  oratrix  well  hoped  that  they  would  have  come 
to  an  equitable  division  and  partition,  as  requested  by  your 


PARTITION   SUITS.  433 

Bill  for  Partition  and  Dower. 

orator  and  oratrix,  as  in  justice  and  equity  they  ought  to  have 
done.  But  now  so  it  is,  may  it  please  your  honor,  that  the  said 
S.  M.,  C.  D.  and  M.  W.,  defendants  in  this  suit,  refuse,  under 
various  pretenses,  all  of  which  are  untrue,  to  comply  with  the 
reasonable  request  of  your  orator  and  oratrix,  to  join  in  a  par- 
tition and  division  of  the  said  premises.  All  of  which  actings, 
doings  and  pretenses  are  contrary  to  equity. 

Forasmuch,  therefore,  as  your  orator  and  oratrix  are  without 
remedy  in  the  premises,  except  in  a  court  of  equity  ;  and  to  the 
end  that  the  said  S.  M.,  C.  D.  and  M.  W.,  who  are  made  parties 
defendants  to  this  bill,  may  be  required  to  make  full  and  direct 
answer  to  the  same,  hut  not  under  oath,  the  answer  under  oath 
heing  hereby  waived  j  that  the  parts  or  shares  justly  belonging 
to  your  orator  and  oratrix,  and  all  the  other  owners  hereinbe- 
fore named,  of,  in  and  to  the  aforesaid  premises,  may  be  settled 
and  ascertained  by  and  under  the  direction  of  this  court; 
and  tfcat  a  fair  division  and  partition  thereof  may  be  made 
between  your  orator  and  oratrix  and  all  other  persons  who 
shall  appear  to  be  owners  of  or  interested  therein,  according 
to  the  respective  rights  and  interests  of  each  therein;  and 
that  proper  commissioners  may  be  appointed  to  make  division 
and  partition  of  the  said  premises  among  the  parties  interested 
therein ;  or,  in  case  a  partition  thereof,  or  any  part  thereof, 
by  metes  and  bounds,  or  a  division  cannot  be  made  without 
manifest  prejudice  to  the  owners,  then  that  the  same,  or  such 
parts  thereof  as  cannot  be  so  divided  and  partitioned,  may  be 
sold  by  and  under  the  direction  of  this  court,  and  that  the 
proceeds  of  the  sale,  after  paying  the  costs  and  charges  of  this 
suit,  may  be  divided  among  the  owners  thereof  according  to 
their  several  rights  and  interests  therein  ;  and  that,  to  that  end, 
the  rights  and  interests  of  the  parties  interested  in  the  said 
premises,  or  in  the  proceeds  of  the  sale  thereof,  may  be  ascer- 
tained and  declared  by  the  order  or  decree  of  this  court ;  and 
that  your  orator  and  oratrix  may  have  such  other  and  further 
relief  in  the  premises  as  equity  may  require  and  to  your  honor 
shall  seem  meet. 

May  it  please  your  honor,  etc.  {Prayer  for  process,  etc.,  aa 
m  I^o.  155,  ante,  page  Jf.'29.) 

No.  157.     Bill  for  partition  and  dower. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 
Your  oratrix,  A.  B.,  and  your  orators,  B.  B.  and  C.  B.,  of,  etc., 
respectfully  represent  unto  your  honor,  that  on,  etc.,  one  E.  B., 
28 


434  PARTITION   SUITS. 

Bill  for  Partition  and  Dower. 

late  of,  etc.,  departed  this  life  intestate,  leaving  your  oratrix 
A.  B.,  his  widow,  and  your  orators,  B.  B.  and  C.  J3.,  his  sons, 
and  F.  B.,  G.  B.  and  H.  B.,  his  daughters,  and  only  children 
and  heirs  at  law ;  that  at  the  time  of  his  death  the  said  E.  B. 
was  possessed  and  seized  in  fee  simple  of  the  following  described 
real  estate,  to  wit :  {Here  describe  the  premises  /)  and  that  the 
said  E.  B.  derived  title  to  the  said  premises  in  the  manner  fol- 
lowing, to  wit :  {Here  set  forth  the  chain  of  title.) 

And  your  oratrix  and  orators  further  represent,  that  no  per- 
son or  persons,  other  than  your  oratrix  and  orators,  and  the 
said  F.  B.,  G.  B.  and  H.  B.,  have  any  interest  in,  or  title  to, 
the  said  described  premises,  or  to  any  part  thereof,  in  posses- 
sion, remainder,  reversion  or  otherwise. 

Your  oratrix  and  orators  further  represent,   that  the  said 

O.  B.  and  H.  B.  are  minors  under  the  age  of years;  and 

that  no  legal  guardian  has  been  appointed  for  them,  by  reason 
whereof  the  said  G.  B.and  H.  B.  are  severally  incompetent  to 
join  in  a  voluntary  partition  and  division  of  said  premises,  and 
to  set  apart  the  dower  of  your  oratrix  therein,  or  to  consent  to 
a  sale  thereof;  and,  as  your  oratrix  and  orators  are  advised,  no 
valid  division  and  partition,  or  assignment  of  dower,  or  a  sale 
of  said  premises  can  be  effected  without  the  aid  and  interpo- 
sition of  some  court  of  competent  jurisdiction. 

Forasmuch,  therefore,  as  your  oratrix  and  orators  are  without 
remedy  in  the  premises,  except  in  a  court  of  equity ;  and  to 
the  end  that  the  said  F.  B.,  G.  B.  and  H.  B.,  who  are  made 
parties  defendant  to  this  bill,  may  be  required  to  make  full  and 
direct  answer  to  the  same,  hut  not  under  oath,  the  answer 
under  oath  heing  hereljy  uiaived;  that  a  guardian  ad  litem  may 
be  appointed  by  the  court  for  the  said  inflmt  defendants ;  that 
the  dower  of  your  oratrix  in  the  said  premises  may  be  assigned 
and  set  apart  to  her ;  and  a  division  and  partition  of  the  residue 
thereof  may  be  made  by  and  under  the  direction  of  this  court, 
between  your  orators  B.  B.  and  C.  B.,  and  the  defendants 
F,  B.,  G.  B.  and  II.  B.,  according  to  their  respective  rights  and 
interests  therein,  to  be  adjudged  by  the  court ;  and  that  in  case 
an  assignment  of  dower,  and  division  and  partition  in  the  said 
premises  cannot  be  made  without  manifest  prejudice  to  the 
parties  interested,  that  the  same  may  be  sold,  under  the  direc- 
tions of  the  court,  and  the  proceeds  thereof  distributed  between 
the  parties,  according  to  their  respective  interests ;  and  that 
your  oratrix  and  orators  may  have  such  other  and  further  relief 
in  the  premises,  as  equity  may  require  and  to  your  honor  shall 
seem  meet. 

May  it  please  your  honor,  etc.  {Prayer  for  process  as  in 
No.  166^  ante,  page  Jf!29,  and  add  affidavit^ 


PAKTITION   SUITS.  435 


Petition  for  Partition  —  Affidavit  to. 


No.  158.     Petition  for  ^partition. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois. 

The  petitioners,  C.  D.,  E.  F.  and  G.  H.,  of,  etc.,  respectfully 
represent  unto  your  honor,  that  your  petitioners,  together  with 
K.  L.  and  M.  N.,  of,  etc.,  are  the  owners  in  fee  simple  as 
tenants  in  common,  in  equal  parts,  of  the  following  described 
real  estate,  to  wit,  etc. :  [Here  describe  the  real  estate.)  That 
they  derived  title  to  the  said  premises  in  the  following  manner, 
that  is  to  say,  [Here  set  forth  the  chain  of  conveyances  through 
which  the  parties  claim  title,  or  other  facts  showing  their  right 
or  title  to  the  land^  which  said  title,  or  evidence  thereof,  your 
petitioners  are  ready  to  produce  and  show  on  the  hearing  here- 
of, as  this  honorable  court  may  require. 

And  your  petitioners  further  represent,  that  no  person  or 
persons,  other  than  your  petitioners  and  the  said  K,  L.  and 
M.  N.  have  any  interest  in,  or  title  to,  the  said  land  or  any  part 
thereof,  in  possession,  remainder,  reversion,  or  otherwise. 

And  your  petitioners  further  represent,  that  the  said  K.  L. 
and  M.  N.  are  minors  under  the  age  of  twenty-one  years. 
Your  petitioners,  therefore,  pray  that  a  guardian  ad  litem  may 
be  appointed  by  the  court  for  said  minors,  that  process  of  sunJ- 
mons  may  issue  against  the  said  K.  L.  and  M.  N.,  returnable 
at  the  next term  of  this  court. 

Your  petitioners  further  pray,  that  upon  a  final  hearing  of 
this  cause,  your  honor  will  order  and  decree  a  division  and 
partition  of  said  premises,  according  to  the  respective  rights 
of  the  parties  interested  therein ;  and  in  case  the  court  shall 
find  that  said  premises  are  so  circumstanced  that  a  division 
thereof  cannot  be  made  without  manifest  prejudice  to  the  par- 
ties interested  in  the  same,  that  a  sale  thereof  be  ordered,  in 
accordance  with  the  statute  in  such  case  made  and  provided. 

O.  P.,  Solicitor  for  Petitionei^s.  C.  D. 

E.  F. 
G.  H. 
State  or  Illinois,  ) 
County  of j 

C.  D.,  of  the  county  and  state  aforesaid,  being  duly  sworn 
on  oath,  says,  that  he  is  one  of  the  petitionei's  to  the  foregoing 
petition,  and  that  the  matters  and  things  in  said  petition  con- 
tained are  true  in  substance  and  in  fact.  C.  D. 

Subscribed  and  sworn  to  before  me,  this day  of , 

A.  D.  18  — . 


436  PARTITION   SUITS. 

Piocees  of  Appearance  —  Summons  —  By  Copy,  etc. 

SECTION  IV. 
PROCESS    OF    APPEARANCE   EN. 

The  statute  of  Illinois,  revised  in  1874,  in  respect  to  process 
and  service  on  defendants  in  partition  suits,  is  as  follows : 

How  summoned.'—''''  The  defendants  to  any  such  petition 
shall  be  summoned  in  the  same  manner  as  defendants  in  suits 
in  chancery."  (^) 

Unknown  parties. — "Unknown  owners,  or  parties  in  inter- 
est, of  the  premises,  and  the  unknown  heirs  of  any  such 
persons,  may  be  notified  by  advertisement,  as  in  cases  in 
chancery."  if) 

Absent  defendants. — "When  it  shall  appear  by  affidavit, 
filed,  as  in  cases  in  chancery,  that  any  defendant  resides,  or 
has  gone  out  of,  this  state,  or,  upon  due  inquiry,  cannot  be 
found,  or  is  concealed  within  this  state,  so  that  process  cannot 
be  served  on  him,  and  the  affiant  shall  state  the  place  of  resi- 
dence of  such  defendant,  if  known,  or  that  upon  diligent 
inquiry,  his  place  of  residence  cannot  be  ascertained,  he  may 
be  notified  in  the  same  manner  as  in  such  case  in  chancery."  (s) 

Service  hy  copy  of  petition. — "  Non-resident  defendants  may 
be  served  by  a  copy  of  the  petition  in  the  same  manner  that 
such  defendants  in  chancery  may  be  served  by  a  copy  of  the 
bill  of  complaint,  and  the  service  thereof  may  be  proved  as  in 
such  case  provided."  {f) 

q)  Ante,  pp.  74-77;  see  Nichols  vs.  Mitchell,  70  111.  258. 

(r)  Ante,  p.  81. 

(s)  Ante,  pp.  77-79. 

(t)  Ante,  pp.  79-81. 


PARTITION  SUITS.  437 

Interpleader  —  Decree  for  Partition  —  Hearing. 

SECTION  V. 
INTEKPLEADER. 

The  14th  section  of  the  revision  of  the  statute  of  Illinois 
provides  that  "  During  the  pendency  of  any  such  suit,  any 
person  claiming  to  be  interested  in  the  premises  to  be  assigned 
or  aparted  may  appear  and  answer  the  petition,  and  assert  his 
or  her  rights  by  way  of  interpleader ;  and  the  court  shall  de- 
cide upon  the  rights  of  persons  appearing  as  aforesaid,  as 
though  they  had  been  made  parties  in  the  first  instance." 

If  the  proceeding  is  under  the  statute  any  party  in  interest 
may  interplead  at  any  time  previous  to  the  final  disposition  of 
the  case,  and  all  orders  and  proceedings  may  be  altered  so  as 
to  meet  any  new  facts  presented  by  new  parties,  {u) 

A  creditor  of  one  of  the  parties  having  a  lien  on  the 
premises  to  the  extent  of  the  share  of  his  debtor,  has  a  right 
to  file  his  bill  in  the  nature  of  an  interpleader  in  the  case,  (v) 

Liens  on  sha/res  of  part  owner. —  The  24th  section  of  the 
statute  provides  that  "  A  person  having  a  mortgage,  attach- 
ment, or  other  lien  on  the  share  of  a  part  owner,  shall  be 
concluded  by  the  judgment  in  partition,  so  far  as  it  respects 
the  partition  and  the  assignment  of  the  shares ;  but  his  lien 
shall  remain  in  full  force  upon  the  part  assigned  to  or  left  for 
such  part  owner." 


SECTION  VI. 
DECREE    FOR    PARTITION. 

The  statute  of  Illinois,  revised  in  1874,  provides  as  follows, 
in  relation  to  the  hearing,  and  decrees  of  the  court : 

Searing. — (§  15.)  "  The  court  shall  ascertain  and  declare  the 
rights,  titles  and  interests  of  the  parties  to  such  suit,  the  peti- 

(m)    Kester  vs.  Starh,  19  111.  328. 

(r)    Schneider  vs.  Seibert,  50  ILL  284;  see  Hards  vs.  Burton,  79  111.  504. 


438  PAETITION   SUITS. 

Decree  —  Appointment  of  Commissioners  —  Dower. 

tioners  as  well  as  the  defendants,  and  shall  give  judgment 
according  to  the  rights  of  the  parties."  {w) 

Ajppointment  of  cowmvissioners. — (§  16.)  "  The  court,when  it 
shall  order  a  partition  of  any  premises  to  be  made,  under  the 
provisions  of  this  act,  shall  appoint  three  commissioners,  not 
connected  with  any  of  the  parties,  either  by  consanguinity  or 
aflBnity,  and  entirely  disinterested,  to  make  partition  of  the 
premises. 

(§  20.)  "  The  commissioners  shall  at  all  times  be  subject  to 
the  direction  of  the  court ;  and  any  one  or  more  of  them  may, 
before  the  iinal  confirmation  of  the  report,  be  removed,  and 
others  appointed  in  their  stead. 

(§  21.)  "  If  the  lands  lie  in  different  counties,  the  court  may 
appoint  separate  sets  of  commissioners  for  each  county,  or  one 
set  for  all  of  them,  as  may  seem  most  for  the  benefit  of  the 
parties  interested." 

A  co-tenant  is  entitled  to  a  decree  in  his  favor  for  rent  in 
arrear,  if  his  right  thereto  is  clearly  established,  {x)  And 
where  an  incumbrance  has  been  paid  oft'  by  one  tenant  in  com- 
mon, he  has  a  lien  therefor,  and  his  rights  will  be  protected  by 
the  court,  {y) 

If  a  portion  of  the  premises  has  been  improved  by  a  co-tenant, 
that  portion  should  be  set  off"  to  him  if  practicable,  without 
taking  into  consideration  the  value  of  the  improvements,  {z) 

Where  land  descends  to  the  wife,  the  decree  should  direct  it 
to  be  set  off  to  the  husband  and  wife  in  right  of  the  wife,  or  to 
her  alone,  not  to  them  jointly  and  in  fee.  («) 

'Allotment  of  dower  or  homestead. — (§  22.)  "  If  dower  has  not 
been  allotted  to  the  person  entitled  thereto,  or  the  homestead 
set  off,  in  case  any  party  to  the  suit  is  entitled  to  an  estate  of 
homestead  in  the  premises,  or  any  part  thereof,  such  dower  may 


{w)  See  Hickenhotham  vs.  Blackledge,  54  111.  316. 

{x)  Eaickins  vs.  Taher,  47  111.  459. 

(2/)  Tittsjcorth  vs.  Stout,  49  111.  78. 

(z)  Dean  vs.  O'Meara,  47  111.  120 ;  see  Kurtz  vs.  Hibner,  55  111.  514. 

{a)  Coat  vs.  Rose,  17  111.  276. 


PAETITION   SUITS.  43* 


Costs  Apportioned  —  Form  of  Decree  for  Partition. 

be  allotted,  and  such  homestead  set  off  by  the  commissioners;, 
and  if  the  court  sliall  so  direct,  the  premises  so  allotted  or  set 

off  may  be  partitioned  among  the  claimants  subject  thereto." 

« 

Costs  ajpjportioned. — According  to  the  statute  (§  40),  "  In  all 
proceedings  for  the  partition  of  real  estate,  the  court  may 
apportion  the  costs,  including  the  reasonable  solicitor's  fees^ 
among  the  parties  to  the  proceeding,  so  that  each  party  shall 
pay  his  equitable  portion  tliereof." 

No.  159.     Decree  for  partition. 

{Caption,  and  title  of  caxise  as  in  No.  79.,  ante, page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answer  of  the  defendants  thereto,  and  the 
replication  of  the  complainant  to  such  answer,  and  the  report 
of  the  master  in  chancery,  to  whom  this  cause  w^as  hei-etofore 
referred  to  take  the  proofs  therein,  which  said  report  is  hereby 
approved  and  confirmed  by  the  court;  and  the  court  having 
heard  the  arguments  of  counsel  for  the  respective  parties,  and 
being  fully  advised  in  the  premises,  doth  find,  that,  etc. ;  {Here 
insert  the  finding  of  the  court,  as  set  out  in  the  hill,)  and  that 
the  allegations  in  the  bill  contained  are  true ;  and  that  parti- 
tion and  division  ought  to  be  made  as  therein  prayed. 

It  is  therefore  ordered,  adjudged  and  decreed,  by  the  court, 
that  the  complainant  A.  B.  and  the  defendant  D.  B.,  are  each 
entitled  to  one-half  of  the  said  premises,  to  wit ;  {Ilere  descrihe 
the  land,)  suliject  to  the  dower  of  the  said  C.  B.,  widow  of  the 
said  B.  B.,  deceased,  in  fee  sim.ple ;  and  that  a  division  and 
partition  of  said  premises  be  made ;  and  that  E.  F.,  G.  H.  and 
L.  M.,  of,  etc.,  neither  of  whom  appear  to  be  connected  with 
any  of  the  parties  by  consanguinity  or  affinity,  and  who  are 
entirely  disinterested,  be  and  they  are  hereby  appointed  com- 
missioners to  make  partition  of  said  premises;  that  each  of 
said  commissioners  take  and  subscribe  an  oath  or  affirmation, 
as  required  by  law,  to  tairly  and  impartially  make  partition  of 
the  said  premises,  according  to  the  rights  and  interests  of  the 
parties,  as  herein  declared  by  this  court,  if  the  same  can  be 
done  consistently  with  the  interests  of  the  parties;  or  if  the 
same  cannot  be  so  divided,  without  manifest  prejudice  to  the 
parties  in  interest,  that  they  will  fairly  and  impartial!}'  appraise 
the  value  of  each  piece  or  parcel  of  the  premises  sought  to  be 
divided,  and  a  true  report  make  to  the  court ;  that  the  said  com- 


440  PARTITION   SUITS. 

Form  of  Decree  for  Partition. 

missioners  shall  go  upon  the  premises,  and  if  the  same  are  sus- 
ceptible of  division,  they  shall  make  partition  thereof,  allotting 
the  several  shares  to  the  respective  parties,  quality  and  quantity 
relatively  considered,  according  their  respective  rights  and 
interests  as  hereby  adjudged,  designating  the  respective  shares 
by  metes  and  bounds,  or  other  proper  description,  and  that 
they  employ  a  surveyor  with  necessary  assistants  to  aid  therein  ; 
and  if  the  premises  are  not  susceptible  of  division,  without 
manifest  prejudice  to  the  parties  in  interest,  they  shall  value 
each  piece  or  parcel  separately ;  and  that  they  report  their 
actings  and  doings  in  the  premises,  under  their  hands  and 
seals,  to  the  court,  as  soon  as  practicable. 

No.  160.     Decree  for  partition. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  day  came  the  petitioners,  by  L.  M.,  their  solicitor,  and 
the  defendants  P.  Q.  and  R.  S.,  by  T.  V.,  their  guardian  ad 
litem ^  and  it  appearing  to  the  court  that  the  defendants  were 
each  duly  served  with  process  of  this  court  more  than  ten  days 
prior  to  .the  commencement  of  the  present  term;  and  the 
court  having  appointed  T.  Y.,  Esq.,  guardian  ad  litem  for  the 
infant  defendants;  and  the  said  guardian  ad  litem  having  filed 
an  answer  to  said  petition,  and  the  petitioners  their  replication 
thereto ;  and  the  court  having  ordered  that  this  cause  be 
referred  to  the  master  in  chancery  of  this  court  to  take  proof 
of  the  matters  alleged  in  said  petition,  and  to  report  the  same 
to  the  court;  and  the  said  master  having  made  report,  which 
is  hereby  approved  and  confirmed.  And  this  cause  coming  on 
to  be  heard  u]ion  the  petition,  answer  of  the  defendants,  by 
T.  v.,  Esq.,  tlieir  guardian  ad  litein,  and  the  replication  thereto, 
together  with  the  testimony  taken,  and  reported  to  the  court 
by  the  said  master ;  and  the  court  having  heard  the  arguments 
of  counsel,  and  being  fully  advised  in  the  premises,  and,  on 
consideration  thereof,  doth  find,  etc.  {Here  state  the  facts  set 
out  in  the  petition,  which  m.ay  he  as  follows :)  That  the 
petitioners  and  the  defendants  are  the  owners  in  fee  smiple  as 
tenants  in  common,  in  equal  parts,  of  the  following  described 
real  estate,  to  wit:  {Here  descrihe  the  land.)  That  they  derived 
title  to  the  same  from,  etc.  {Here  set  forth  the  source  of  title^ 
That  no  person  or  persons,  other  than  said  parties,  liave  any 
interest  in,  or  title  to,  the  said  hinds,  o  •  any  part  thereof,  in 
possession,  remainder,  ivveTsioii  oi-  otherwise. 

The  court  doth  therefore  o-der.  adjudge  and  decree  tliat  the 
eaid  petitioners  C.  D.,   I*].   1"'.   .•md   G.  H.,  and  the  defendants 


PAETITION   SUITS.  141 

Form  of  Decree  for  Partition  and  Dower. 

P.  Q.  and  R.  S.,  are  each  entitled  to  one-fifth  part  of  said 
premises  in  fee  simple;  and  the  court  dotli  further  order, 
adjudge  and  decree  that  a  division  and  partition  of  said 
premises  he  made ;  that  B.  A.,  D.  C.  and  F.  E.,  neither  of 
whom  appear  to  he  connected  with  any  of  the  parties,  either 
by  consanguinity  or  affinity,  and  who  are  entirely  disinter- 
ested, he,  and  they  are  hereby,  appointed  commissioners  to 
make  partition  of  said  premises ;  each  of  said  commissioners 
shall  take  and  subscribe  an  oath,  or  affirmation,  fairly  and 
impartially  to  make  partition  of  said  lands,  in  accordance  with 
the  judgment  of  the  court,  as  to  the  rights  and  interests  of 
said  parties,  if  the  same  can  be  done  without  manifest  preju- 
dice to  the  parties  in  interest.  The  said  commissioners  are 
ordered  to  go  upon  the  premises  and  make  partition  of  said 
lands,  tenements  and  hereditaments,  assigning  to  each  party 
his  or  her  share,  quality  and  quantity  relatively  considered,  by 
metes  and  bounds,  or  other  proper  description,  and  they  may 
employ  a  surveyor,  with  necessary  assistance  to  aid  therein ; 
and  if  said  commissioners  shall  find  that  said  premises  are  so 
circumstanced  that  a  division  thereof  cannot  be  made  without 
manifest  prejudice  to  the  parties  in  interest,  they  will  value 
each  piece  or  parcel  separately,  and  make  report  under  their 
hands  and  seals  to  the  court,  during  the  present  or  next  suc- 
ceeding term  tliereof. 

No.  161.     Decree  for  partition  and  dower. 

( Caption,  and  title  of  cause  as  m  Ho.  79,  ante,  page  198.) 

This  day  came  the  complainants,  by  their  solicitor,  and  the 
said  defendants,  G.  B.  and  H.  B.,  by  W.  X.,  their  guardian  ad 
litem,  no  counsel  appearing  for  the  defendant  F.  B. ;  and  it 
appearing  to  the  court  that  each  of  the  defendants  was  duly 
served  with  process  more  than  ten  days  previous  to  the  com- 
mencement of  the  present  term  ;  and  it  having  fui-ther  appeared 
to  the  court  that  the  defendants  G.  B.  and  H.  B.  are  infants, 
under  the  age  of  twenty-one  years;  and  the  court  having 
appointed  W.  X.,  Esq.,  guardian  ad  litem  for  said  infant  defend- 
ants ;  and  the  said  guardian  ad  litem  having  filed  his  answer 
herein,  and  the  complainants  their  replication  thereto;  and  the 
defcTidant  F.  B.  still  failing  to  plead,  answer  or  demur  to  the  said 
bill,  it  is  ordered,  adjudged  and  decreed  by  the  court,  that  the 
same  be  taken  jyro  covfesso  against  the  said  F.  B.;  and  the  court 
having  ordered  that  this  cause  be  referred  to  the  master  in 
chancery  of  this  court  to  take  proof  of  the  matters  alleged  in 
said  bill,  and  report  the  same  to  the  court ;  and  the  said  ui.ister 


442  PARTITION   SUITS. 

Form  of  Decree  for  Partition  and  Dower. 

having  made  his  report,  which  is  hereby  approved  and  con- 
firmed ;  and  this  cause  coming  on  to  be  heard  npon  the  bill,  the 
answer  of  the  defendants  G.  B.  and  H.  B.  by  W.  X.,  their  guard- 
ian ad  litem,  and  the  replication  thereto,  together  with  the  ex- 
hibits and  testimony  taken  and  reported  to  the  court  by  the  said 
master;  and  upon  the  bill  taken  as  confessed  against  the  defend- 
ant F.  B.;  and  the  cause  having  been  argued  by  counsel ;  and  the 
court  being  fully  advised  in  the  premises,  on  consideration  there- 
of, doth  find,  etc.  {Here  state  the/acts  as  they  appear,  which  may 
he  as  follows :)  That  on,  etc.,  one  E.  B.,  late  of,  etc.,  departed 
this  life,  intestate,  leaving  the  complainant  A.  B.  his  widow, 
and  the  complainants  B.  B.  and  C.  B.,  his  sons,  and  the  defend- 
ants F.  B.,  (t.  B.  and  H.  B.,  his  daughters,  and  only  heirs  at 
law ;  that  at  the  time  of  his  death  the  said  E.  B.  was  seized  in 
fee  simple  of  the  following  described  real  estate,  to  wit :  {Here 
descrihe  the  land.)  That  the  said  E.  B.  derived  title  to  said 
premises  from  the  United  States,  by  patent  bearing  date  on,  etc. 
{Here  set  out  the  title  fully.)  That  no  person  or  persons  other 
than  the  complainants  and  defendants,  have  any  interest  in,  or 
title  to,  the  said  lands  or  to  any  part  thereof,  in  possession, 
remainder,  reversion  or  otherwise. 

The  court  doth  therefore  order,  adjudge  and  decree  that  the 
said  complainant  A.  B.,  widow  of  the  said  E.  B.,  be  endowed 
of  one  full  equal  third  part  of  the  said  lands  and  premises ; 
and  that  the  said  complainants  B.  B.  and  0.  B.,  and  the 
defendants  F.  B.,  G.  B.  and  H.  B.,  are  each  entitled  to  one- 
fifth  part  of  said  pi'eraises,  in  fee  simple,  subject  to  said  dower; 
and  the  court  doth  further  order,  adjudge  and  decree  that  the 
said  A.  B.  recover  her  dower  in  said  premises,  and  that 
division  and  partition  be  made  of  the  remainder  thereof  after 
the  assignment  of  said  dower,  between  the  said  B.  B.,  C.  B., 
F.  B.,  G.  B.  and  IT.  B.,  in  accordance  with  their  respective 
interests  therein  ;  that  B.  A.,  D.  C.  and  F.  E.,  neither  of  whom 
appear  to  be  connected  with  any  of  said  parties,  either  by  con- 
sanguinity or  affinity,  and  are  entirely  disinterested,  be,  and 
they  are  hereby  appointed  commissioners  to  assign  dower  and 
make  partition  of  said  premises;  each  of  said  commissioners 
shall  take  and  subscribe  an  oath  or  affirmation  as  required  by 
law,  and  to  go  upon  said  premises,  and  first  set  ofi',  allot  and 
assign  to  said  A.  B.  her  dower  in  said  premises,  by  metes  and 
bounds,  or  other  pro])er  description,  according  to  quality  and 
quantity  of  said  premises,  giving  her  the  homestead,  or  dwell- 
ing-house of  the  homestead,  if  she  desires  it,  and  may  assign 
the  whole  of  said  dower  in  a  body,  or  out  of  two  or  more  of 
such  tracts,  in  such  manner  as  they  may  deem  best  for  all  per- 


PARTITION   SUITS.  443 

Proceedings  by  Commissioners  —  Oath  Required. 

sons  interested ;  and,  secondly,  after  assigning  the  widow's 
dower,  as  aforesaid,  said  commissioners  are  ordered  to  make 
division  and  partition  of  tlie  remainder  of  said  premises  be- 
tween the  said  B.  B.,  C.  B.,  F.  B.,  G.  B.  and  H.  B.,  respect- 
ively, assigning  to  each  one-tifth  part  thereof  by  metes  and 
bounds,  or  other  proper  description,  quality  and  quantity 
relatively  considered  ;  and  that  they  employ  a  surveyor,  with 
necessary  assistance,  to  aid  them  ;  and  if  said  commissioners 
shall  find  that  said  premises  are  so  circnmstanced  that  dower 
cannot  be  assigned,  and  a  division  and  partition  made  without 
manifest  prejudice  to  the  parties  in  interest,  they  will  fairly 
and  impartially  appraise  the  value  of  each  piece  or  parcel  of 
the  said  premises,  and  a  true  report  make,  nnder  their  hands 
and  seals,  to  the  court  during  the  present  or  at  next  term 
thereof. 


SECTION  VII. 
PKOCEEDINGS    BY    COMMISSIONERS. 

Required  to  take  an  oath. — The  19th  section  of  the  statute 
requires  that  "  Such  commissioners  shall  each  take  and  sub- 
scribe an  oath  or  affirmation  fairly  and  impartially  to  make 
partition  of  the  premises,  according  to  the  rights  and  interests 
of  the  parties,  as  declared  by  the  judgment  of  the  court,  if  the 
same  can  be  done  consistently  with  the  interests  of  the  parties  ; 
or,  if  the  same  cannot  be  so  divided  without  manifest  preju- 
dice to  the  parties  in  interest,  that  they  will  fliirly  and  impar- 
tially appraise  the  value  of  each  piece  or  parcel  of  the  premises 
sought  to  be  divided,  and  a  true  report  made  to  the  court." 

The  commissioners  should  take  the  oath  or  affirmation  as 
required  by  the  statute,  and  proceed  in  conformity  thereto,  (b) 

Where  the  oath  and  report  of  the  commissioners  bore  date 
previous  to  the  date  of  the  decree  appointing  them,  the  pro- 
ceeding was  held,  in  a  direct  proceeding,  to  be  erroneous, 
although  the  report  was  subsequently  approved  by  the 
court,  (c) 

(6)     Tibhs  vs.  Allen,  27  111.  119 ;  see  Durham  vs.  Mulkey,  59  111.  91. 
(c)    Sullivan  vs.  Sullivan,  42  111.  315. 


444  PAKTITION   SUITS. 


Form  of  Oath  of  Commissioners  —  Duty  of  CommisBioners. 


No.  16'2.     Oath  of  commissioners. 

In  the Court. 

A.  B.  et  al.  )  Term,  18—. 

'VS.  y for  Partition. 

C.  D.  et  al.  ) 
State  OF  Illinois,  ) 

County  of f  ^^' 

I  do  solemnly  swear  {or  affirm)  that  I  will  fairly  and  im- 
partially make  partition  of  the  premises  mentioned  in  the 
decree  rendered  by  the  court  in  the  above  entitled  cause,  on, 
etc.,  according  to  the  rights  and  interests  of  the  parties,  as  de- 
clared therein  by  the  judgment  of  the  court,  if  the  same  can  be 
done  consistently  with  the  interests  of  the  parties ;  or  if  the 
same  cannot  be  so  divided  without  manifest  prejudice  to  the 
parties  in  interest,  that  I  will  fairly  and  impartially  appraise 
the  value  of  each  piece  or  parcel  of  the  premises  sought  to  be 
divided,  and  a  true  report  make  to  the  court,  so  help  me  God. 

B.  A. 
D.  C. 
F.  E. 
Subscribed  and  sworn,  etc. 

Duty  of  commissioners. — The  18th  section  of  the  statute 
provides  that  "  the  commissioners  shall  go  upon  the  premises, 
and  if  the  same  are  susceptible  of  division  they  shall  make 
partition  thereof,  allotting  the  several  shares  to  the  respective 
parties,  quality  and  quantity  relatively  considered,  according 
to  their  respective  rights  and  interests  as  adjudged  by  the  court, 
designating  the  respective  shares  by  metes  and  bounds,  or  other 
proper  descriptions,  and  they  may  employ  a  surveyor  with  neces- 
sary assistants  to  aid  therein ;  and  if  the  premises  are  not  sus- 
ceptible of  division  without  manifest  prejudice  to  the  parties  in 
interest,  they  shall  value  each  piece  or  parcel  separately." 

The  commissioners  may  set  off  part  of  the  premises  to  some 
of  the  parties  to  the  proceeding,  and  recommend  the  sale  of  the 
remainder  for  the  benefit  of  the  others,  as  the  interests  of  the 
parties  may  require,  {d) 

Where  a  portion  of  the  premises  has  been  improved  by  one 

id)  Kester  vs.  Stark,  19  111.  328,  330;  see  Greenup  ys.Sewell.lS  111.51,53. 


PARTITION   SUITS.     '  445 

Report  of  Commissioners  —  Form  of  Report. 

of  the  parties,  such  portion  should  be  set  off  to  him,  without 
taking  into  consideration  the  value  of  such  improvements,  {e) 

The  23d  section  of  the  statute  provides  that,  "  Several  parties 
interested  in  the  premises  may,  if  they  so  elect,  have  their 
shares  set  off  together  or  in  severalty." 

Report  of  commissioners. — The  statute  provides  that 
(§  19.)  "  The  commissioners  shall  make  report,  in  writing, 
signed  by  at  least  two  of  them,  showing  what  they  have  done, 
and  if  they  shall  have  made  a  division,  describing  the  premises 
divided,  and  the  shares  of  each  party  by  metes  and  bounds,  or 
other  proper  description  ;  or  if  they  find  that  the  lands  cannot 
be  divided,  they  shall  so  report,  and  shall  report  their  valua- 
tion of  each  piece  or  tract  separately." 

The  report  of  the  commissioners  must  conform  to  the  re- 
quirements of  the  statute.  (/*)  And  where  the  land  is  to  be 
divided  it  must  be  under  seal ;  but  where  the  land  is  reported 
as  not  susceptible  of  division,  a  seal  is  not  required.  (^) 

No.  163.     Report  of  commissioners  making  partition^  etc. 

In  the Court. 

A.  B.  et  at.  \  Term,  18—. 

vs.         \  In  Chancery  for  Partition. 
C.  D.  et  al.  ) 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois,  » 

In  Chancery  sitting : 

In  pursuance  of  a  decree  rendered  in  the  above  entitled 
cause,  on,  etc.,  we,  the  commissioners  therein  named,  respect- 
fully report  to  the  court,  that,  after  each  of  us  having  taken  and 
subscribed  an  oath  [or  affirmation)  fairly  and  impartially  to 
make  partition  of  the  premises  mentioned  in  the  said  decree, 
according  to  the  rights  and  interests  of  the  parties  as  declared 
therein  by  the  judgment  of  the  court,  if  the  same  could  be  done 
consistently  with  the  interests  of  the  parties ;  or  if  the  same 

(e)  Dean  vs.  O'Meara,  47  111.  120;  Km-tz  vs.  Hihner,  55  III.  514;  Row- 
man  vs.  Bowles,  19  111.  21;  Louvalle  \s.  Menard,  1  Gilm.  39;  Roberts  vs. 
Beckwith,  79  111.  246. 

(/)    Tlhhs  vs.  Allen,  27  111.  119;  Dnrham  vs.  Mulket/,  59  111.  91. 

ig)    Sullivan  vs.  Sullivan,  42  111.  315. 


446  PARTITION   SUITS. 

Form  of  Report  of  Commissioners,  etc. 

could  not  be  so  divided  without  manifest  prejudice  to  the  par- 
ties in  interest,  that  we  would  tairly  and  impartially  appraise 
the  value  of  each  piece  or  parcel  of  the  premises  sought  to  be 
divided,  and  a  true  report  make  to  the  court, — wdiich  said  oath 
is  hereto  attached  for  greater  certainty ;  we  went  upon  the 
premises  described  in  said  decree,  to  wit :  {Here  describe  the 
premises,)^  and  made  partition  thereof,  allotting  the  several 
shares  to  the  respective  parties,  quality  and  quantity  relatively 
considered,  according  to  their  respective  rights  and  interests  as 
declared  by  the  judgment  of  the  court,  in  said  decree,  that  is  to 
say,  we  set  off  and  allotted  to  A.  B.  in  severalty,  for  his  interest 
and  share  of  said  premises,  being  the part  thereof,  accord- 
ing to  the  relative  value  thereof,  the  following,  to  wit:  {Here 
describe  the  part  so  allotted  by  metes  and  bounds,  or  other  proper 
description  •)  and  to  the  said  C.  D.,  etc.  {Here  set  out  the  same 
as  in  the  last,  and  so  proceed  with  each  share.) 

And  we  would  further  report,  that  we  employed  K.  S.,  a 
surveyor,  wath  necessary  assistants  to  aid  therein,  in  making 
such  partition  ;  and  that  the  items  of  the  various  expenses 
attending  the  execution  of  the  said  decree,  including  our  fees, 
are  contained  in  a  schedule  hereto  annexed,  marked  "  A,"  and 
forming  a  part  of  this  our  report.  And  that  for  the  better 
understanding  and  more  clear  elucidation  of  the  shape  and  situ- 
ation of  the  said  premises,  and  of  the  manner  in  which  such 
partition  has  been  made  by  us,  we  have  caused  to  be  made  a 
map  thereof,  showing  what  parts  of  the  said  premises  have  been 
allotted  to  the  respective  parties  ;  which  map  forms  a  part  of 
this  our  report,  and  is  hereto  attached,  marked  "  Exhibit  B." 

All  of  which  is  respectfully  submitted  for  the  approval  of 
the  court. 

In  witness  whereof,  we,  the  said  commissioners,  have  set 

our  hands  and  seals  to  this  our  report,  this day  of ,  in 

the  year  18 — . 


daj 

^of 

■"» 

B. 

A. 

L.S 

•1 

D. 

C. 

L.S 

•1 

F. 

E. 

L.S 

•] 

{Attach  the  oath,  schedule  A,  and  exhibit  B.) 

1^0. 161},.     Report  of  commissioners  that  the  premises  are  not 
susceptible  of  division. 

{Proceed  as  in  last  form,  No.  163,  to  the  asterisk^,  and  then) 
And  upon  examination  thereof,  we  determined,  and  so  report  to 
the  court,  that  the  said  premises,  and  each  piece  or  parcel  there- 
of, are  not  susceptible  of  division  without  manifest  prejudice  to 
the  parties  in  interest.     We  further  report  that  we  have  fairly 


PARTITION   SUITS.  447 

Decree  Confirming  Report  of  Commissioners. 

and  impartially  appraised  the  value  of  each  piece  or  parcel  of 
the  premises  sought  to  be  divided,  and  lix  the  value  of  each 
piece  or  parcel  se]:)arate]y,  as  follows,  that  is  to  say,  we  lix  the 
value  of,  etc.,  {Here  deser'ilje  the  piece  or  parcel^  at dol- 
lars ;  and  of,  etc.,  {Here  describe  the  second  piece  or  parcel^ 
at dollars ;  and  of,  etc.  {and  so  on  each  tract.) 

And  we  would  further  report  that  the  items  of  the  various 
expenses  attending  the  execution  of  the  said  decree,  including 
our  fees,  are  contained  in  a  schedule  hereto  annexed  marked 
"A,"  and  forming  a  part  of  this  our  report. 

AH  of  which  is  respectfull}'  submitted. 

In  witness  whereof,  we,  the  commissioners,  have  set  our 

hands  and  seals  to  this  our  report,  this day  of ,  in 

the  year  18-  -.  B.  A.  [l.s.] 

D.  C.  [l.s.] 
F.  E.  [l.s.] 

{Attach  oath  and  schedule  A.) 

N'o.  165.     Decree  conrfi/rming  report  of  coTnraissionei's. 

{CajAion,  and  title  of  cause  as  in  iVo.  75,  ante,  p)^9^  198.) 

This  day  came  B.  A.,  D.  C.  and  F.  E.,  commissioners, 
appoiuted  by  the  court  to  make  partition  of  the  lands  in  a 
former  decree  mentioned  between  the  parties  thereto,  and 
made  report  of  their  proceedings,  and  that  they  had  made 
partition  as  in  and  by  said  decree  they  were  required ;  and  the 
court  having  examined  the  same,  doth  find  that  the  said  com- 
missioners have,  in  every  respect,  proceeded  according  to  law, 
and  the  judgment  of  the  court  in  said  decree  declared,  and 
that  said  partition  w^as  fairly  and  impartially  made,  and  no 
objections  or  exceptions  being  made  by  any  of  the  parties 
herein  thereto  ;  and  the  court  being  fully  advised' in  the  prem- 
ises, doth  order,  adjudge  and  decree  that  the  proceedings,  par- 
tition and  report  of  said  commissioners  be,  and  the  same  are 
hereby  approved  and  confirmed,  and  that  the  said  parties  hold 
in  severalty  the  shares  set  off  and  assigned  to  each,  respect- 
ively, by  the  said  commissioners,  and  that  the  title  to  the 
shares  set  off  and  assigned  by  said  commissioners  to  each  of 
said  parties,  respectively,  be,  and  the  same  is  hereby  vested  in 
the  said  parties,  respectively,  according  to  said  assignment. 

And  it  is  further  ordered  that  the  report  of  said  commission 
be  spread  at  large  upon  the  records  of  this  court. 

And  it  is  further  ordered  that  the  costs  and  expenses  of  this 

proceeding  be  paid  within  days  by  the  parties,  in  the 

following   proportions,  to  wit :  That,  etc.,  {Here  set  out  the 


448  PARTITION   SUITS. 

Exceptions  to  Report  of  Commissioners  —  Decree  of  Sale. 

proportions  each  party  is  required  to  pay  /)  and  that  the  same 

be  paid  within da3's  from  this  date,  and  in  default  thereof, 

that  execution  issue  therefor. 


SECTION  VIII. 
EXCEPTIONS    TO    REPORT    OF    COMMISSIONERS. 

On  filing  of  the  report  of  the  commissioners  in  partition, 
either  party  may  file  exceptions  thereto,  and  the  court  will 
hear  evidence  in  support  and  against  such  report,  and  approve 
or  disapprove  of  the  same,  as  the  facts  may  justify.  And 
inequality  of  value,  as  well  as  inequality  in  quantity,  is  held 
to  be  a  good  cause  for  setting  aside  a  report  of  commissioners; 
and,  upon  the  hearing  of  such  exceptions,  the  facts  may  be 
shown  by  afiidavit,  (A) 

SECTION  IX. 

DECREE   OF   SALE. 

The  statute  of  1874  provides  that 

(§  26.)  "  When  the  whole  or  any  of  the  premises  sought  to 
be  partitioned  cannot  be  divided  without  manifest  prejudice 
to  the  owners  thereof,  and  the  commissioners  appointed  to 
divide  the  same  shall  so  report,  the  court  shall  order  the 
premises  so  not  being  susceptible  of  division  to  be  sold  at 
public  vendue,  upon  such  terms  and  notice  of  sale  as  the  court 
shall  direct. 

(§  27.)  "  But  no  piece  or  parcel  of  the  premises  shall  be  sold, 
if  it  will  not  bring  at  least  two-thirds  as  much  as  it  shall  have 
been  valued  by  the  commissioners,  unless  the  other  piece  will,  at 
the  same  time,  sell  for  enough  to  make  the  total  amount  of  the 
sales  equal  to  two-thirds  the  total  amount  of  the  valuation  of  all 
the  premises  to  be  sold  :  Provided,  that  if  it  shall  appear  to 
the  court  that  any  of  the  premises  will  not  sell  for  two-thirds 
the  amount  of  the  valuation  thereof,  the  court  may  appoint  other 
commissioners  to  revalue  such  premises,  and  their  valuation 


(A)  Rigga  vs.  Dickinsoti,  2  Scam.  438. 


PARTITION   SUITS.  449 

Decree  of  Sale  —  Dower  Interest  —  Unknown  Owners. 

shall  be  taken  instead  of  the  valuation  of  the  commissioners 
first  appointed. 

(§  28.)  "  The  court  may  direct  the  sale  to  be  made  for  cash 
or  on  such  credit  as  may  be  deemed  most  fur  the  interest  of  all 
the  parties." 

An  order  of  sale  cannot  be  made  until  after  a  decree  of  par- 
tition shall  first  be  entered  of  record,  and  the  preliminary  steps 
provided  by  statute  taken  under  such  decree,  and  the  commis- 
sioners shall  report  that  partition  cannot  be  made  without 
manifest  prejudice  to  the  parties  in  interest,  (i) 

Dower  interest,  etc. — The  statute  provides  that 

(§  32.)  "  In  case  of  sale  the  court  may,  with  the  assent  of  the 
person  entitled  to  an  estate,  in  dower  or  by  the  courtesy,  or  for 
life  or  for  years,  or  of  homestead,  to  the  whole  or  any  part  of 
the  premises,  who  is  a  party  to  the  suit,  sell  such  estate  with 
the  rest ;  but  such  assent  shall  be  in  writing,  and  signed  by 
such  person,  and  filed  in  the  court  wherein  the  said  proceedings 
for  partition  are  pending. 

(§  33.)  "  If  such  persons  are  incapable  of  giving  assent,  the 
court  may  determine,  taking  into  view  the  interests  of  all  the 
parties,  whether  such  estate  ought  to  be  excepted  from  the 
sale,  or  sold. 

(§  34.)  "  When  any  such  interest  is  sold,  the  value  thereof 
may  be  ascertained  and  paid  over  in  gross  or  the  proper  pro- 
portion of  the  funds  invested,  and  the  income  paid  over  to  the 
party  entitled  thereto,  during  the  continuance  of  the  estate." 

Interest  of  unknown  owners. — The  statute  further  provides 
that 

(§  35.)  "  If  the  person  entitled  to  any  such  estate  is  unknown, 
the  court  may  determine  whether  the  estate  shall  be  sold  or 
not,  as  in  case  of  persons  under  disability,  and  in  the  event  of 
sale,  make  such  order  for  tlie  protection  of  the  rights  of  such 
person,  in  the  same  manner,  as  far  as  may  be,  as  if  the  person 
were  known  and  had  appeared. 

(i)    McLain  vs.  Van  Winkle,  46  111.  406. 

d9 


450  PARTITION   SUITS. 

Form  of  Decree  of  Sale. 

(§  36.)  "  Where  a  sale  of  premises'  is  made,  and  no  perBon 
appears  to  claim  sucli  portion  of  the  money  as  may  belong  to  any 
non-resident  or  person  whose  name  is  nnknown,  the  court  shall 
require  such  money  to  be  deposited  in  the  state  treasury,  sub- 
ject to  the  further  order  of  the  court,  and  all  moneys  so 
required  to  be  deposited  shall  be  received  by  the  state  treasurer 
and  paid  out  upon  the  order  of  the  court. 

(§  37.)  "  When  money  is  deposited  in  the  state  treasury, 
under  the  provisions  of  this  act,  the  person  or  persons  entitled 
to  the  same  may,  at  any  time,  apply  to  the  court  making  the 
order  of  sale,  and  obtain  an  order  for  the  same  upon  making 
satisfactory  proof  to  the  court  of  his  right  thereto." 

No.  166.     Decree  for  sale  of  premises. 

{Caption,  and  title  of  cause  as  in  No.  79,  B,nte,page  198.) 

This  day  came  again,  the  petitioners  {or  complainants),  by 
L.  M.,  their  solicitor,  and  the  infant  defendants  E.  F.  and 
G.  H.,  by  R.  S.,  their  guardian  ad  litem,  no  counsel  appearing 
for  the  defendant  C.  D.,  and  the  said  B.  A.,  D.  C.  and  F.  E., 
commissioners,  heretofore  appointed  herein  by  the  court  to 
make  partition  of  the  premises  hereinafter  mentioned,  made 
report  that  the  same  are  so  circumstanced  that  a  division 
thereof  cannot  be  made  without  manifest  prejudice  to  the  par- 
ties interested ;  and  the  court  having  examined  said  report 
doth  iind  that  said  commissioners  have,  in  all  respects,  pro- 
ceeded in  accordance  with  the  law  and  the  terms  of  the 
decree  under  which  they  were  appointed ;  and  the  court 
being  fully  advised  in  the  premises,  doth  order,  adjudge  and 
decree  that  the  proceedings  of  said  commissioners  and  their 
report  be,  and  the  same  are  hereby  approved  and  confirmed ; 
and,  thereupon,  this  cause  coming  on  to  be  heard  upon  tlie 
report  of  said  commissioners,  and  the  court  having  heard  the 
arguments  of  counsel,  -and  being  fully  advised  in  the  j^remises, 
and  on  consideration  thereof,  dotJi  order,  adjudge  and  decree 
that  the  said  premises,  to  wit :  {Here  descrihe  the  premises) 
be  sold  at  public  auction,  at,  etc.,  to  the  highest  and  best 
bidder,  provided  the  said  bid  upon  each  piece  or  parcel  shall 
be  equal  to  at  least  two-thirds  of  the  valuation  put  upon 
the  same,  as  shown  by  the  report  of  the  commissioners  liere- 
tofore  a])]»ointed  by  the  court  to  make  partition  thereof, 
which  said  sale  shall  be  made  on  the  following  terms:  {Here 
set  onxt  tlie  terras  of  sale.)     That  the  master  in  chancery  of 


1 


PARTITION   SUITS.  451 

Exceptions  to  Eeport  of  Sale  —  Confirmation  of  Sale. 

this  court  be,  and  he  is  hereby  directed  to  make  said  sale, 
and  to  carry  into  eifect  this  decree.  The  said  master  will  first 
give  public  notice  of  such  sale,  and  the  time,  place  and  terms 
thereof,  by  publication  in  some  public  newspaper  printed  and 
published  in  said  county,  for  at  least  four  weeks  prior  to  such 
sale,  and  by  posting  written  or  printed  notices  thereof  in  at  least 
five  of  the  most  public  places  in  the  neighborhood  where  said 
premises  are  situate ;  and,  upon  the  confirmation  of  the  report 
of  said  master,  he  shall  execute  and  deliver  to  the  purchaser  or 
purchasers  of  the  premises  so  sold  a  proper  deed  or  deeds  of 
conveyance  thereof.  The  said  master  will  bring  the  money, 
etc.,  realized  from  such  sale  into  court,  to  be  distributed  to  the 
parties  entitled  thereto,  under  the  direction  of  the  court ;  the 
said  master  will  report  his  proceedings  herein  to  the  court  at 
the  next  term  thereof,  to  which  time  this  cause  is  hereby  con- 
tinued. 

SECTION  X. 

EXCEPTIONS  TO  EEPOKT  OF  SALE. 

Upon  the  master's  making  report  of  sale,  exceptions  may  be 
taken,  and  if  it  appears  that  the  requirements  of  the  statute  or 
decree  of  sale  have  not  been  complied  with,  or  any  other  suffi- 
cient ground  appears,  the  court  will  set  the  sale  aside.  And 
some  proof,  independent  of  the  assertion  of  the  master  or  com- 
missioner making  the  sale,  must  be  made  that  public  notice 
was  given  of  a  sale  of  land  in  partition,  otherwise  the  sale  will 
not  be  confimied.  {j ) 

SECTION  XI. 
CONFIRMATION    OF    SALE. 

(§  30.)  "  Upon  the  confirmation  of  the  report  of  the  master, 
special  commissioner  or  other  officer  making  the  same,  or  some 
person  specially  appointed  thereto,  shall  execute  and  deliver  to 
the  purchaser  or  purchasers  of  the  premises  sold  proper  convey- 
ances thereof,  taking  in  case  of  sale  on  credit,  security  as  required 
by  the  decree ;  which  conveyance  shall  operate  as  an  efiectual 

(j)  Tibbi  vs.  Allen,  29  111.  535 ;  see  Dunning  vs.  Dunning,  37  111.  306 ; 
Comstoek  vs.  Purple,  49  111.  158. 


452  PARTITION   SUITS. 

Form  of  Decree  Confirming  Sale. 

bar  against  all  parties  and  privies  to  said  proceeding,  and  all 
persons  claiming  under  them." 

No.  167.     Decree  confirming  sale  tn  partition. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  day  came  the  master  in  chancery,  appointed  by  a  former 
decree  of  the  court,  herein,  to  make  sale  and  to  carry  into 
effect  said  former  decree,  and  made  report  of  his  proceedings ; 
and  the  court  having  examined  the  same,  doth  find  that  the 
said  master  has  in  every  respect  proceeded  in  due  form  of  law, 
and  in  accordance  with  the  terms  of  said  decree,  and  that  said 
sale  was  fairly  made ;  and  the  court  being  fully  advised  in  the 
premises,  doth  order,  adjudge  and  decree  that  the  proceedings, 
sale  and  report  of  said  master  be,  and  the  same  are  hereby 
approved  and  confirmed;  and  it  is  further  ordered  that  the 
said  master  execute  and  deliver  to  the  said  O.  M.,  the  purchaser 
at  said  sale,  proper  conveyances  of  the  premises  so  sold ;  and 
that  out  of  the  proceeds  of  said  sale,  he  pay  first  the  costs 
and  charges  of  this  proceeding,  and  that  the  said  master  dis- 
tribute the  residue  of  said  moneys  between  the  said  parties  in 

the   following   proportions,  to  wit:     To  the  said   A.  B. 

dollars ;  to  C.  D. dollars  ;  to,  etc.  etc. 

For  additional  Illinois  cases  in  relation  to  partition,  see 
Fight  vs.  Hall,  80  111.  ^^\  Turner  vs.  Bennett,  TO  111.  263; 
LeMoyne  vs.  Quhnhij,  70  111.  399 ;  III.  L.  &  L.  Co.  vs.  Bonner, 
75  111.  315;  Wad/ta?ns,  vs.  Gay,  73  111.  415;  Ningshury  vs. 
Buchier,  70  111.  514 ;  Nichols  vs.  Padfield,  77  111.  253 ;  La- 
hidie  vs.  Hewitt,  85  111.  341. 


CHAPTER  XXXI. 

PBOCEEDINGS    FOR   DOWER. 

Section  1.  Nature  op  Dower. 

2.  In  what  Property  Dower  Attaches. 

3.  Dower,  how  Barred. 

4.  Elements  and  Incidents  op  Doweb. 

5.  Suits  por  Dower. 

6.  Frame  op  Petition. 

7.  Process  op  Appearance  in. 

8.  Interpleader. 

9.  Hearing  and  Decree. 

10.  Commissioners  to  Assign  Dower. 

11.  Allowance  in  Lieu  op  Dower. 

12.  Damages  por  Refusal  to  Assign  Dower. 

13.  Mode  op  Ascertaining  Value  op  Dower. 

14.  Miscellaneous  Provisions  op  the  Statute. 


SECTION  I. 

NATURE   OF   DOWER. 

Dower  is  an  estate  for  life  which  the  law  gives  the  widow 
in  the  lands  and  tenements,  or  hereditaments,  of  which  the 
husband  was  seized  during  coverture.  Strictly,  it  applies  only 
to  what  the  law  gives  her,  independent  of  any  act  of  the  hus- 
band, and  which,  in  fact,  it  is  not  in  his  power  to  bar.  A 
marriage  portion,  therefore,  whether  given  with  the  wife  or 
secured  to  her  use,  and  whether  so  given  or  secured  by  the 
father  or  other  relative,  or  by  the  husband  himself,  is  not 
dower ;  and  yet  the  term  by  which  such  marriage  portion  was 
designated  in  the  Roman  law  was  used  by  Bracton  and  other 
English  writers,  for  the  right  of  the  widow  in  the  lands  and 
tenements  of  her  deceased  husband  given  to  her  by  the  com- 
mon law,  as  well  as  the  endowment  in  contemplation  of 
marriage,  which  last  was  also  called  donatio  ante  nuptias. 

The  English  word  dower  expressed  the  former,  and  also  the 
donation  before  marriage,  which  was  in  two  modes,  viz.,  ad 


454  "     PROCEEDINGS  FOR  DOWEl. 

Nature  of  Dower. 

ostium  ecclesicB,  and  ex  assensu  patris.  Both  of  these  endow- 
ments were  made  at  the  porch  of  the  church,  after  aflBance  and 
before  marriage ;  in  the  one  the  husband  endowed  the  wife 
of  lands  of  which  he  was  himself  seized ;  in  the  other,  with 
the  consent  of  his  fether,  he  endowed  her  of  lands  belonging 
to  the  father ;  and  it  was  usual  to  specify  the  particular  lands 
intended. 

Endowments  at  the  church  door  was  the  common  mode  of 
providing  for  the  wife  in  the  time  of  Bracton  (1260),  and  no 
other  mode  could  be  substituted,  as  by  will  or  other  convey- 
ance, the  object  of  which  was  to  prevent  fraud. 

The  feudal  restriction  against  alienation  of  lands  was,  how- 
ever, extended  to  dower,  and  the  husband  was  not  allowed  to 
endow  the  wife  ad  ostium  ecclesice  of  more  than  one-third  part 
of  his  lands.  This  gave  rise  to  the  common  law  rule  which 
has  ever  since  prevailed. 

In  the  absence  of  such  donation,  or  in  case  of  the  omission 
to  specify  the  particular  lands,  it  was  prescribed  that  tlie  wife 
should  be  entitled  to  one-third  of  the  lands  of  tlie  husband  for 
life  if  she  survived  him,  which  was  called  dos  rationabilis.  It 
was  at  first  limited  to  the  lands  which  the  husband  had  at  tlie 
time  of  the  donation,  unless  he  especially  charged  his  future 
acquisitions ;  and  in  case  he  had  no  lands,  or  not  sufficient,  he 
was  permitted  to  endow  his  wife  of  personal  property,  which 
was  held  to  be  a  bar  against  any  claim  to  dower  of  lands  there- 
after acquired.  But  in  Magna  Charta  it  was  provided  that  the 
wife  should  have  for  dower  the  third  part  of  all  lands  which  the 
husband  had  held  during  his  lifetime,  unless  she  had  been  en- 
dowed with  less  ad  ostium  ecdesicB. 

In  the  reign  of  Henry  lY,  (A.  D.  1403,)  it  was  denied  that 
the  wife  could  be  endowed  of  her  husband's  goods  and  chattels  ; 
and  Littleton,  who  wrote  in  the  reign  of  Edward  lY,  (1466,) 
asserted  that  she  could  be  endowed  ad  ostium  ecclesicB  of  more 
than  a  third  part  of  the  lands,  and  that  she  had  the  election, 
after  the  death  of  her  husband,  to  accept  it  or  to  take  her  dower 
at  common  law.  In  consequence  of  this  uncertainty,  that  mode 
of  endowment  fell  into  disuse,  but  was  never  abolished  by  law 
until  the  reign  of  William  lY,  (1833.) 


PKOCEEDINGS   FOE  DOWER.  455 

Nature  of  Dower. 

Dower  at  common  law  is  ditferent  from  the  dotation  of  other 
countries,  in  being  limited  wholly  to  lands,  and  to  such  only  as 
the  hnsband  holds  in  fee.  By  the  civil  law  the  donatio  ante 
nuptias  or,  as  Justinian  called  it,  propter  nuptias,  was  all  the 
provision  made  for  the  wife.  It  might  consist  of  either  lands 
or  personal  property  ;  but  though  it  went  into  the  possession 
of  the  husband,  it  could  not,  if  it  consisted  of  lands,  be  alien- 
ated by  him  even  with  the  wife's  consent,  for  which  the  reason 
given  is  the  fragility  of  the  female  sex.  Upon  the  death  of  the 
husband,  or  dissolution  of  the  marriage  otherwise,  the  wife 
only  took  what  had  been  given  her  on  the  marriage,  or  of 
which  a  donation  had  been  made  during  the  marriage.  Of  the 
other  property  of  the  husband  she  could  take  nothing  either 
as  widow  or  heir. 

In  France,  the  two  modes  of  providing  for  the  wife  are  desig- 
nated by  the  discriminative  terms  dot  and  dottaire  ;  the  former 
of  which  is  defined  to  be  that  which  the  wife  brings  in  mar- 
riage ;  the  latter  is  the  right  which  the  wife  has,  by  custom  or 
matrimonial  contract,  to  a  certain  portion  of  the  estate  of  the 
husband  upon  his  death.  The  origin  of  douaire  was  that  in 
some  provinces  of  France,  called  France  coidumiere,  women 
were  not  endowed  on  marriage,  and  hence  grew  up  the 
custom  that  the  husband,  at  his  death,  should  leave  something 
for  the  support  of  the  wife.  What  was  so  left  was  called  either 
dot  or  douaire,  the  wife  being  said  to  be  douee  or  dotee.  But  as 
it  was  intended  for  her  support  merely,  it  was  provided  that 
after  her  death  it  should  go  to  the  children  of  the  husband  if 
he  left  any. 

Philip  Augustus,  (A,  D.  1484,)  fixed  the  dower  of  the  wife 
at  one-half  of  the  goods  wdiich  the  husband  had  at  the  marriage. 

Henry  II,  (A.  D.  1164,)  of  England,  established  in  his- 
French  provinces  a  rule  that  dower  should  be  one-third,  and 
this  difference  continued  to  exist  on  the  opposite  sides  of  the 
Loire,  nntil  the  customary  law  was  swept  away  by  the  legisla- 
tion which  succeeded  the  revolution  of  1789. 

By  the  present  law  of  France  married  people  may,  by  stipu- 
lation made  before  marriage,  become  subject  to  the  law  of  the 
community,  or  to  the  law  of  dowery.     If  the  former,  it  brings 


456  PEOCEEDINGS  FOR  DOWER. 

Nature  of  Dower. 

into  common  stock  all  the  movables  of  which  the  parties  are 
possessed  at  the  time  of  marriage,  and  of  the  immovable 
which  shall  be  acquired  during  marriage. 

Dower  {la  dot)  is  what  the  wife  brings  to  the  husband  in 
marriage,  and  it  may  be  either  by  donation  from  another  or  by 
a  settlement  of  the  wife  upon  herself,  and  it  may  extend  to  all 
the  present  or  future  property  of  the  wife,  but  cannot  be  consti- 
tuted or  augmented  during  marriage.  The  parties  may  stipu- 
late for  a  community  of  future  acquisitions  only.  The  husband 
has  the  management  of  dotal  property,  but  is  accountable  as  a 
usufructuary,  and  in  case  it  be  put  in  peril  the  wife  may  obtain 
a  separation  of  goods. 

The  English  law  of  dower  has  undergone  very  great  changes. 
By  statute  3  and  4,  William  IV,  ch.  105,  the  widow  is  not 
entitled  to  dower  of  lands  which  the  husband  has  disposed  ot 
in  his  lifetime,  or  by  will.  All  charges  by  will  and  all  debts 
and  incumbrances  to  which  the  estate  of  the  husband  is  sub- 
ject, take  priority  of  dower ;  and  dower  is  made  subject  to  any 
restrictions  which  the  husband  may  impose  by  will.  But,  on 
the  other  hand,  the  wife  is  entitled  to  equitable  dower  of  any 
beneficial  interest  of  the  husband  which  shall  amount  to  an 
estate  of  inheritance  in  possession,  except  joint  tenancy ;  and 
no  gift  of  personal  property  by  the  husband  can  invalidate  the 
right  to  dower,  unless  so  expressly  declared  by  will. 

This  modification  of  the  law  of  dower  has  probably  grown 
out  of  the  general  custom  prevailing  in  England  among  the 
land  proprietors  of  making  marriage  settlements.  In  cases 
where  this  is  omitted,  the  wife  still  has  some  provisions  under 
the  statute  of  distribution  of  29  Charles  II,  (1679,)  which  gives 
her  one-third  of  the  personal  estate  of  the  husband  when  he 
dies  intestate,  not  for  life  merely,  but  absolutely. 

In  the  United  States,  the  general  rule  prevails  of  allowing 
to  the  widow  an  estate  for  life  in  one-third  of  all  the  lands  of 
which  the  husband  was  seized  in  fee.  The  rule,  however, 
varies  in  different  states  in  two  particulars :  In  New  York, 
Blinois,  and  most  other  states,  dower  is  a  charge  upon  all  the 
lands  of  which  tlio  husband  was  seized  at  any  time  during 
coverture,  except  such  as  she  has  released  by  joining  in  the 


PROCEEDINGS  FOR  DOWER.  457 

In  what   Property  Dower  Attaches. 

conveyance  thereof  bj  the  husband.  In  some  of  the  states,  as 
Yermont,  Connecticut,  Tennessee,  North  Carolina,  and  Georgia, 
it  is  limited  to  the  lands  of  which  the  husband  was  seized  at 
the  time  of  his  death ;  but  the  husband  is  not  allowed  to  bar 
dower  b}^  will,  nor  by  a  voluntary  conveyance,  in  which  any 
benefit  is  reserved  to  himself.  Again,  in  Pennsylvania,  Ten- 
nessee, and  Missouri,  dower  does  not  attach  to  lands  sold  under 
judicial  process,  nor  to  lands  sold  under  a  mortgage  executed 
by  the  husband  alone. 

The  rule  is  general,  perhaps  universal,  that  the  wife  takes 
one-third  of  the  personal  estate  upon  the  death  of  her  husband 
in  accordance  with  the  English  statute  of  distribution. 

In  almost  all  the  states  the  mode  of  assigning  dower  is 
regulated  by  very  minute  statutory  provisions ;  and  to  these, 
in  each  state,  reference  must  be  made  for  the  particular  mode 
of  procedure,  and  the  powers  of  the  court. 


SECTION  II. 
IN   WHAT   PKOPEKTT   DOWER   ATTACHES. 

The  1st  section  of  the  revised  law  of  1874,  in  relation  to 
dower,  provides  "  That  the  estate  of  courtesy  is  hereby  abol- 
ished, and  the  surviving  husband  or  wnfe  shall  be  endowed  of 
the  third  part  of  all  the  lands  whereof  the  deceased  husband 
or  wife  was  seized  of  an  estate  of  inheritance  at  any  time 
during  the  marriage,  unless  the  same  shall  have  been  relin- 
quished in  legal  form.  Equitable  estates  shall  be  subject  to 
such  dower,  and  real  estate  of  every  description  contracted  for 
by  the  deceased  husband  or  wife,  in  his  or  her  lifetime,  the 
title  to  which  may  be  completed  after  his  or  her  decease." 

A  widow  can  be  endowed  of  estates  of  inheritance  only,  {a) 
To  entitle  the  widow  to  dower  on  account  of  the  equitable 
estate  of  her  husband,  he  must  at  some  time  during  coverture 
have  been  seized  of  an  equitable  estate  of  inheritance  in  the 
property ;  that  is,  an  equitable  title  to  the  property  must  have 

(a)    Damnport  vs.  Farrer,  1  Scam.  314;  Strihlitig  vs.  Ross,  16  111.  123. 


458  PROCEEDINGS    FOR   DOWER. 

In  what   Property  Dower  Attaches. 

presently  existed  in  liim,  wliicli  title,  had  he  died  at  the  mo- 
ment, would  have  descended  to  his  heirs  at  law  as  real  estate, 
instead  of  going  to  his  personal  representatives  as  chattel  in- 
terest or  chose  in  action.  {!>)  She  is  not  dowable  of  improve- 
ments put  upon  the  land  after  the  alienation  by  her  husband, 
but  is  entitled  to  the  benefit  of  its  increased  value,  arising  from 
other  cause  than  the  labor  and  expenditure  of  the  alienee,  (c) 

A  preemption  right  is  not  an  estate  of  which  a  widow  can 
be  endowed,  (d)  Nor  will  dower  be  assigned  in  an  estate  em- 
braced in  a  contract  of  purchase  which  was  assigned  by  the 
husband  in  his  lifetime,  {e)  If  the  husband  never  had  a  title 
to  land,  but  only  a  contract,  which  might  ripen  into  a  title, 
which  he  assigned,  any  act  of  the  husband  in  completing  the 
title,  subsequent  to  the  assignment,  will  not  aid  the  wife  in 
obtaining  dower.  {/)  But  if  the  contract  is  transferred  after 
its  terms  are  complied  with,  and  the  husband  is  entitled  to  a 
conveyance,  the  lands  are  subject  to  dower,  [g) 

A  sale  of  land  under  a  mechanic's  lien,  which  attached  before 
the  execution  of  a  deed  of  trust  on  the  same  property,  will  de- 
feat the  title  under  the  deed  of  trust,  and  will  revive  the  right 
of  dower  in  the  widow,  although  the  wife  had  joined  in  the 
deed  of  trust.  (A) 

A  widow  is  dowable  in  wild  or  unimproved  lands,  (i)  and  in 
inheritable  equitable  estates,  {j)  and  in  money  paid  for  lands 
condemned  for  public  uses,  (k) 

Where  a  person  holds  land  in  trust  for  another,  the  wife  of 

{b)  Nichol  vs.  Ogden,  29  111.  377;  see  Xichol  vs.  Miller,  37  111.  388;  Atkin 
V6.  Merrell,  39  111.  G2;  Stowe  vs.  Sieeh,  45  111.  328;  Gale  vs.  Klnzie,  80  111.  133. 

(c)     Summers  vs.  Bahh,  13  111.  483;  Gove  vs.  CcHher,  23  III.  634. 

{d)    Davenport  vs.  Fqrrer,  1  Scam.  314. 

(e)     Owen  vs.  Bobbins,  19  111.  545;  Morse  vs.  Thorsell,  78  111.  600. 

(/)  Porter  vb.  Mdng,  24  111.  617  ;  Owen  vs.  Bobbins,  19  III.  545  ;  Woolly 
VB.  Magie,  26  111.  526. 

(g)    Stowe  vs.  Steele,  45  111.  328. 

(h)    Gove  vs.  Gather,  23  111.  634 

(i)     Schnebly  vs.  Schncbly,  26  111.  116. 

{j)  Atkins  vs.  Merrell,  39  111,  62  ;  Stowe  vs.  Steele,  45  111.  828;  Steele  vs. 
Magie,  48  111.  396;  see  Strawn  vs.,Strawn,  46  111.  412. 

(A)    Bonners  vs.  Peterson,  44  111.  253. 


PROCEEDINGS   FOR  DOWER.  459 

Aliens  Entitled  to  —  Mortgaged  Land,  etc. 

the  trustee  is  not  entitled  to  dower.  But,  until  the  establish- 
ment of  the  trust,  the  widow  is  ijruua  facie  entitled  to 
dower.  (/) 

Aliens  entitled  to  dower. — The  2d  seciion  of  the  revised 
dower  act  provides  that  "  The  surviving  husband  or  wife  of 
an  alien  shall  be  entitled  to  dower  the  same  as  if  such  al.c-n 
had  been  a  native  born  citizen  of  the  United  States." 

Dower  in  lands  mortgaged  hefore  marriage. — The  statute 
provides : 

(§  3.)  "  Where  a  person  seized  of  an  estate  of  inheritance  in 
land,  shall  have  executed  a  mortgage  of  such  estate  before 
marriage,  the  surviving  husband  or  wife  of  such  person  shall, 
nevertheless,  be  entitled  to  dower  out  of  the  lands  mortgaged, 
as  against  every  person,  except  the  mortgagee  and  those  claim- 
ing under  him." 

Dower  in  lands  mortgaged  to  secure  'purchase  money.  The 
statute  is  as  follows : 

(§  4.)  "  Where  a  husband  or  wife  shall  pm'chase  lands  dur- 
ing coverture,  and  shall  mortgage  such  lands  to  secure  the 
payment  of  the  purchase  money  thereof,  the  surviving  Avife  or 
husband  shall  not  be  entitled  to  dower  in  such  lands,  against 
the  mortgagee  or  those  claiming  under  him,  altliough  she  or 
he  shall  not  have  united  in  such  mortgage,  but  shall  be  enti- 
tled to  dower  as  against  all  other  persons." 

Dower  in  surplus  after  sale  on  mortgage. — The  statute  pro- 
vides as  follows : 

(§  5.)  "  When,  in  either  of  the  cases  specified  in  the  two 
preceding  sections  (3  and  4),  the  mortgagee,  or  those  claim- 
ing under  him,  shall,  after  the  death  of  such  husband  or 
wife,  cause  the  land  mortgaged  to  be  sold,  either  under  a 
power  contained  in  the  mortgage,  or  by  virtue  of  the  judg- 
ment or  decree  of  a  court,  and  any  surplus  shall  remain,  after 
the  payment  of  the  moneys  due  on  such  mortgage,  and  the 

(Z)     Bailey  vs.  West,  41  111.  290. 


460  PEOCEEDINGS   FOR  DOWER. 

Dowor,  how  Barred  —  Jointure,  etc. 

costs  and  charges  of  sale,  such  survivor  shall  be  entitled  to  the 
interest  or  income  of  one-third  part  of  such  surplus,  for  life,  as 
dower.'' 

Money  borrowed  of  a  third  person  and  invested  in  the  pur- 
chase of  land,  is  not  purchase  money  within  the  meaning  of 
the  4th  section  of  the  dower  act,  which  we  have  above 
quoted.  {771) 

Dower  does  not  attach  to  estate  created  hy  mortgage. — The 
6th  section  of  the  dower  act  provides  that 

(§  6.)  "No  person  shall  be  endowed  of  lands  conveyed  to 
his  or  her  wife  or  husband  by  way  of  mortgage,  unless  such 
wife  or  husband  have  acquired  an  absolute  estate  during  the 
marriage." 

SECTION  III. 

DOWEK,    HOW    BAKEED. 

At  common  law,  dower  is  barred  in  various  ways :  1st.  By 
adultery  of  the  wife,  unless  it  has  been  condoned.  2d.  By  a 
joint  settlement  on  the  wife.  3d.  By  the  wife  joining  her 
husband  in  a  conveyance  of  the  estate.  4th.  By  the  husband 
and  wife  levying  a  fine,  or  suffering  a  common  recovery.  5th. 
By  a  divorce  a  vinculo  matrimonii.  6th.  By  an  acceptance 
by  the  wife  of  a  collateral  satisfaction,  consisting  of  land,  money 
or  other  chattel  interest,  given  instead  of  it  by  the  husband's 
will,  and  accepted  after  the  husband's  death. 

The  right  of  dower  is  liable  to  be  defeated  by  every  subsist- 
ing claim  or  encumbrance  existing  prior  to  the  husband's  title, 
and  which  would  have  defeated  his  seizin. 

By  jointure.^  etc. — The  sections  of  the  revised  dower  act,  ag 
to  the  effect  of  jointure,  are  these : 

(§  7.)  "  When  an  estate  in  land  shall  be  conveyed  to  an 
intended  husband  and  wife,  or  to  either  of  them,  or  to  any 
person  in  trust  for  such  intended  husband  and  wife,  or  either 

(7w)  Jeneson  vs.  Garden,  29  111.  199. 


PROCEEDINGS   FOR  DOWER.  461 

Dower,  how  Barred  —  By  Will,  etc. 

of  them,  for  the  purpose  of  creating  a  jointure  in  favor  of 
either  of  them  with  his  or  her  assent,  to  be  taken  in  lieu  of 
dower,  such  jointure  shall  bar  any  right  or  claim  for  dower  by 
the  party  jointured  in  any  lands  of  the  other. 

(§  8.)  "The  assent  required  in  the  preceding  section  shall 
be  evinced  by  the  party,  if  of  fall  age,  becoming  a  party  to 
the  conveyance  by  which  such  jointure  is  settled,  or,  if  a 
minor,  by  joining  with  the  father  or  guardian  in  such  convey- 
ance. 

(§  9.)  "  If  before  marriage,  but  without  such  assent,  or  if 
after  marriage,  land  shall  be  given  or  assured  for  the  jointure 
of  a  wife  or  husband  in  lieu  of  dower,  such  wife  or  husband 
may  elect  whether  to  take  such  jointure,  or  to  be  endowed  as 
herein  provided,  but  shall  not  be  entitled  to  both." 

By  will,  etc. — The  following  are  the  sections  of  the  statute 
in  relation  to  the  effect  of  a  will  upon  dower : 

(§  10.)  "  Any  devise  of  land,  or  any  estate  therein,  or  any 
other  provision  made  by  the  will  of  a  deceased  husband  or 
wife  for  a  surviving  wife  or  husband  shall,  unless  otherwise 
expressed  in  the  will,  bar  the  dower  of  such  survivor  in  the 
lands  of  the  deceased,  unless  such  survivor  shall  elect  to  and 
does  renounce  the  benefit  of  such  devise  or  other  provision,  in 
which. case  he  or  she  shall  be  entitled  to  dower  in  the  lands 
and  to  one-third  of  the  personal  estate  after  the  payment  of  all 
debts. 

(§  11.)  "  Any  one  entitled  to  an  election  under  either  of  the 
two  preceding  sections  shall  be  deemed  to  have  elected  to  take 
such  jointure,  devise  or  other  provision,  unless,  within  one 
year  after  letters  testamentary  or  of  administration  are  issued, 
he  or  she  shall  deliver  or  transmit  to  the  county  court  of  the 
proper  county  a  written  renunciation  of  such  jointure,  devise 
or  other  provision." 

A  widow,  under  the  statute,  is  only  barred  of  her  dower 
when  the  husband  has  made  a  devise  of  land  to  her,  or  some 
interest   therein,  with  her  express  or  implied  assent.      The 


462  PROCEEDINGS   FOR  DOWER. 

Dower,  how  Barred  —  By  Will,  etc. 

mere  bequest  of  personal  property  without  a  provision  that  it 
shall  bar  dower,  would  not  produce  that  result,  (n) 

Where  a  will  directs  that  land  shall  be  converted  into 
money  and  given  to  distributees,  it  is  personalty,  and  does  not 
give  an  interest  in  the  land ;  and  if  the  widow  was  one  of  the 
distributees,  her  right  of  dower  is  not  thereby  barred.  (<?) 

A  widow,  by  claiming  her  share  of  the  purchase  money 
arising  out  of  contracts  for  the  sale  of  real  estate  made  by  the 
testator  in  his  lifetime,  no  deeds  having  been  executed,  thereby 
bars  her  right  of  dower  in  the  lands  sold.  ( p) 

It  is  a  general  rule  that  when  the  inchoate  right  to  dower  is 
once  vested,  that  right  cannot  be  divested,  except  by  her  own 
voluntary  act,  performed  in  the  mode  prescribed  by  law.  {q) 

Where  a  deed  from  a  husband  and  wife  becomes  inoperative 
as  to  the  husband's  estate,  because  made  in  fraud  of  the  rights  • 
of  creditors,  or  from  any  previous  lien  or  incumbrance,  or 
where  the  purchase  money  is  recovered  back  for  a  defect  of 
title  in  the  husband,  or  by  reason  of  any  wrongful  act  on  the 
part  of  the  husband,  the  wife's  dower  in  the  land  is  not  barred 
by  the  deed,  {r) 

Where  husband  or  wife  die  without  issue,,  etc. — The  statute 
provides  that 

(§  12.)  "  If  a  husband  or  wife  die  testate,  leaving  no  child 
or  descendants  of  a  child,  the  surviving  husband  or  wife  may,  ■ 
if  he  or  she  elect,  have,  in  lieu  of  dower  in  the  estate  of  which 
the  deceased  husband  or  wife  died  seized,  whether  the  right  to 
such  dower  has  accrued  by  renunciation  as  hereinbefore  pro- 
vided, or  otherwise,  and  of  any  siiare  of  the  personal  estate 
which  he  or  slie  may  be  entitled  to  take  with  such  dower,  abso- 
lutely, and  in  his  or  her  own  right,  one-half  of  all  the  real  and 
personal  estate  wliich  shall  remain  after  the  payment  of  all  just 

(»)    StriUing  vs.  Ross,  16  111.  122  ;  Jennings  vs.  Smith,  29  111.  116. 
{o)    Jennings  vs.  Smith,  29  111.  116. 
{p)  Skinner  vs.  Newherry,  51  111.  203. 

{q)  Mcoll  vs.  Ogclen,  29  111.  386  ;  Nichol  vs.  Miller,  37  111.  388 ;  Bee  Boyki 
vs.  McMurphy,  55  111.  236. 

(r)    Morton  vs.  Noble,  57  111.  176. 


PKOCEEDINGS   FOE  DOWER.  463 

Dower,  how  Barred  —  RenuDciation  of  Will — Divorce,  etc. 

debts  and  claims  against  the  estate  of  the  deceased  husband  or 
wife.  The  election  herein  provided  for  may  be  made  wliether 
dower  has  been  assigned  or  not,  and  at  any  time  before  or 
within  two  months  after  the  notification  to  the  survivor  of  the 
payment  of  debts  and  claims,  and  not  afterwards." 

Renunciation  of  right  under  will,  etc. — The  statute  provides 
that  a  husband  or  wife  may  renounce  his  or  her  rights  under 
a  will  or  jointure  in  the  following  manner : 

(§  13.)  "  The  renunciation  in  the  preceding  sections  (7,  8, 
9,  10,  11  and  12)  required,  may  be  in  the  following  form, 
to  wit : 

'  1,  A.  B.,  surviving  wife  (or  husband)  of  C.  D,,  late  of  the 

county  of ,  and  state  of — — ,  deceased,  do  hereby  renounce 

and  quit  all  claim  to  the  benefit  of  any  jointure  given  or  assured 
to  me  in  lieu  of  dower  (or  any  devise  or  other  provision  made 
to  me  by  the  last  will  and  testament  of  the  said  C.  D.,  or  other- 
wise, as  the  case  may  be,)  and  I  do  elect  to  take  in  lieu  thereof 
my  dower  and  legal  share  in  the  estate  of  the  said  C.  D.,  (or 
otherwise,  as  the  case  may  require.)' 

"  Which  renunciation  shall  be  filed  in  the  office  of  the  clerk 
of  the  county  court,  and  entered  by  said  clerk  at  large  upon 
the  records  of  the  court,  and  shall  operate  as  a  complete  bar 
to  any  claim  which  such  survivor  may  afterwards  set  up  to 
any  jointure,  devise,  testamentary  provision  or  dower  thus 
renounced."  {s) 

Effect  of  divorce,  etc. — The  statute  in  relation  to  the  efl[ect 
of  a  divorce  upon  dower  is  as  follows : 

(§  14.)  "  If  any  husband  or  wife  is  divorced  for  the  fault  of 
misconduct  of  the  other,  except  where  the  marriage  was  void 
from  the  beginning,  he  or  she  shall  not  thereby  lose  dower  nor 
the  benefit  of  any  such  jointure ;  but  if  such  divorce  shall  be 
for  his  or  her  own  fault  of  misconduct,  such  dower  or  jointure, 
and  any  estate  granted  by  the  laws  of  this  state,  in  the  real  or 
personal  estate  of  the  other,  shall  be  forfeited." 

(a)    See  Brown  vs.  Pitney,  39  111.  468 ;  Simmons  vs.  Johnson,  47  Dl.  350. 


464  PROCEEDINGS   FOR  DOWER. 

Dower,  how  Barred  —  Abandonment  —  Judgment  —  Exchange,  etc. 

If  upon  a  divorce  a  decree  is  rendered  granting  alimony  to 
the  wife  in  lieu  of  dower,  the  dower  will  be  barred,  {t) 

By  abandonment  and  adultery. — The  statute  further  pro- 
vides that 

(§  15.)  "  If  a  husband  or  wife  voluntarily  leave  the  other 
and  commit  adultery,  he  or  she  shall  be  forever  barred  of 
dower  and  of  the  benefit  of  any  such  jointure,  unless  they  are 
afterwards  reconciled  and  dwell  together." 

Not  hy  judgment,  etc. — The  statute  provides  that 

(§  16.)  "  No  judgment  or  decree  confessed  or  recorded 
against  a  husband  or  wife,  and  no  laches,  default,  covin,  for- 
feiture or  crime  of  either,  no  deed  or  conveyance  of  either, 
without  the  assent  of  the  other,  evinced  by  the  acknowledg- 
ment thereof,  as  required  by  law,  shall  prejudice  the  right  of 
the  other  to  dower  or  jointure,  or  preclude  the  other  from  the 
recovery  thereof,  if  otherwise  entitled  thereto." 

The  dower  of  the  wife  is  not  defeated  by  a  sale  on  judgment 
and  execution  against  the  husband,  or  otherwise  than  by  her 
own  assent  or  misconduct,  {u) 

Insanity  furnishes  no  reason  for  a  court  of  equity  to  interfere 
to  deprive  a  person  of  dower  to  which  he  or  she  is  entitled.  It 
can  only  be  done  by  the  voluntary  act  of  such  person,  {v) 

And  it  would  be  erroneous  to  debar  a  woman  of  her  claims 
to  dower  in  premises  included  in  a  mortgage  which  she  did 
not  sign,  {w)  or  acknowledge  in  the  mode  pointed  out  by  the 
statute,  {x) 

By  exchange  of  lands,  etc. — It  is  further  provided  that 
(§  17.)  "  If  a  husband  or  wife  seized  of  an  estate  of  inherit- 
ance in  lands,  exchange  it  for  other  lands,  the  surviving  hus- 

{t)  See  Armstrong  vs.  Armstrong,  35  111.  109  ;  Marvin  vs.  Collins,  48 
111.  156. 

{u)   Sislc  vs.  Smith,  Admr.  1  Gilm.  503  ;  Francisco  vs.  Hendricks,  28  111.  64. 

(v)    Ex  parte  McElwain,  29  111.  442. 

\w)   Gold  vs.  Ryan,  14  111.  58. 

{x)  Russell  vs.  Rumsey,  85  111.  862;  Steele  vs.  Gellatly,  41  111.  39;  see 
Johnson  vs.  Montgomery,  51  111.  185. 


PROCEEDINGS   FOE  DOWER.  465 

Elements  and  Incidents  of  Dower. 

band  or  wife  shall  not  have  dower  of  both,  but  shall  make 
election  as  hereinbefore  provided,  to  be  endowed  of  the  lands 
given,  or  of  those  taken  in  exchange ;  and  if  snch  election  be 
not  evinced,  by  the  commencement  of  proceedings  for  the 
recovery  and  assignment  of  dower  of  the  lands  given  in  ex- 
change, within  one  year  after  the  death  of  such  husband  or 
wife,  the  survivor  shall  be  deemed  to  have  elected  to  take 
dower  of  the  lands  received  in  exchange." 

Persons  sellvng  hy  order  of  court  for  payment  of  debts  do 
not  thereby  relinquish  dower ^  etc. — The  statute  provides  that 

(§  46.)  "  No  person  who  sells  and  conveys  lands  by  order 
of  court  for  the  payment  of  debts  shall  be  deemed  to  have 
relinquished,  by  reason  of  such  conveyance,  any  right  of  dower 
which  he  or  she  may  have  in  such  lands,  unless  his  or  her 
relinquishment  is  specified  in  the  deed  or  conveyance." 

SECTION  rv. 

ELEMENTS   AND   INCIDENTS   OF   DOWEB. 

To  the  consummation  of  dower,  three  things  are  indispensa- 
bly requisite :  1st.  Marriage.  This  must  be  a  marriage  not 
absolutely  void,  and  existing  at  the  death  of  the  husband ;  a 
wife  de  facto,  whose  marriage  is  voidable  by  decree,  as  well  as 
a  wife  dejure,  is  entitled  to  it ;  and  the  wife  shall  be  endowed, 
though  the  marriage  be  within  the  age  of  consent,  and  the 
husband  dies  within  that  age.  {y)  2d.  Seizin.  The  husband 
must  have  been  seized,  some  time  during  the  coverture,  of  the 
estate  of  which  the  wife  is  dowable.  (s)  3d.  Death  of  the 
husband,  {a) 

Transfer  of  dower,  etc. — Dower  is  a  right  resting  in  action 
only,  until  it  is  assigned  it  is  inchoate,  and  is  not  the  subject 

{y)  Co.  Litt.  33,  a ;  7  Co.  42 ;  Doct.  &  Stud.  22 ;  see  Sisk  vs.  Smith,  Admr. 
1  Gilm.  503. 

(s)    Co.  Litt.  31,  a;  4  Kent,  Com.  38  ;  2  Black.  Com.  132. 

(a)    Cruise,  Dig.  lit.  6,  ch.  2,  §  22  ;  1  Vern.  R.  218  ;  1  Salk.  291 ;  Sisk  va 
Smith,  Admr.  1  Gilm.  503. 
30 


460  PROCEEDINGS   FOR   DOWER. 

Suits  for  Dower  —  Duty  of  Heirs  to  Assign. 

matter  of  sale  or  transfer.  It  cannot  be  sold  under  execution. 
The  only  use  the  widow  can  make  of  her  dower  interest,  is  to 
release  it  to  the  owner  in  fee,  until  it  shall  have  been  set  apart 
to  her.  She  may  release  it  to  the  owner  of  the  fee,  but  she 
cannot  transfer  it  to  a  stranger,  (b) 

A  woman  during  coverture  cannot  release  her  dower  to 
lands  of  a  prior  husband,  (c) 

A  widow's  right  of  dower  in  land  not  assigned  is  not  liable 
to  sale  on  execution,  [d) 

A  former  owner  of  the  fee  in  land  in  which  a  dower  right 
still  exists,  who  has  conveyed  the  same,  with  warranty,  may 
purchase  the  right  of  dower  for  the  benefit  of  his  grantee, 
however  remote,  and  thus  prevent  a  breach  of  his  covenant,  (e) 

SECTION  V. 

.   SUITS   FOE   DOWEE. 

Duty  of  hews  to  assign  dower ^  etc. — The  statute  provides  that 
(§  18.)  "  It  shall  be  the  duty  of  the  heir  at  law,  or  other 
person  having  the  next  estate  of  inheritance  or  freehold  in  any 
lands  or  estate  of  which  any  person  is  entitled  to  dower,  to  lay 
off  and  assign  such  dower  as  soon  as  practicable  after  the  death 
of  the  husband  or  wife  of  such  person. 

(§  19.)  "  If  such  heir  or  other  person  shall  not  within  one 
month  next  after  such  death,  satisfactorily  assign  and  set  over 
to  the  surviving  husband  or  wife,  dower  in  and  to  all  lands, 
tenements  and  hereditaments  whereof  by  law  he  or  she  is  or 
may  be  dowable,  such  survivor  may  sue  for  and  recover  the 
same  by  petition  in  chancery,  as  hereinafter  prescribed,  against 
such  heir  or  other  person,  or  any  tenant  in  possession,  or  any 
other  person  claiming  right  or  possession  of  said  estate." 

(&)  Blain  vs.  Harrison,  11  111.  384 ;  Johnson  vs.  Montgomery,  51  111.  185  • 
La  Framboise  vs.  Orow,  56  111.  197  ;  Summers  vs.  Bobb,  13  111.  483 ;  Hoots  vs. 
Oraham,  23  111.  81 ;  Bobbins  vs.  Kinzie,  45  111.  354 ;  Chicago  Dock  Co.  vs. 
Kimie,  49  111.  289  ;  Wheeler  vs.  Kinzie,  Id.  297. 

(c)    Osborne  vs.  Horine,  19  111.  124 ;  Bailey  vs.  West,  41  111.  290. 

id)    Newman  vs.  Willetts,  48  111.  534. 

(e)    La  Framboise  vs.  Orow,  56  111.  197. 


PROCEEDINGS  FOR  DOWER.  467 

Who  may  File  Petition,  etc. —  Frame  of  Petition. 

Who  may  file  ^petition. — (§  43.)  "  Heirs,  or,  if  under  age, 
their  guardians,  or  any  other  persons  interested  in  lands,  tene- 
ments or  hereditaments,  may  also  petition  the  court  to  have 
dower  assigned  to  the  person  entitled  thereto,  which  shall  be 
proceeded  in  in  the  same  manner  as  is  prescribed  in  other 
cnses." 


Where  peUtion  may  he  fiZed. — (§  20.)  "  The  petition  may  be 
filed  in  any  court  of  record  of  competent  jurisdiction  in  the 
county  where  the  estate,  or  some  part  thereof,  is  situated." 

Where  infants  are  petitioners  or  defendoMts — Guardia/n 
AD  LITEM. — By  the  statute, 

(§  21.)  "  Infants  may  petition  by  guardian  or  neti  friend, 
and  other  persons  under  guardianship  by  their  conservators. 
Wlien  an  infant  or  person  under  guardianship  is  a  defendant, 
he  may  appear  by  guardian  or  conservator,  or  the  court  may 
appoint  a  guardian  ad  litem  for  such  person,  and  compel  the 
person  so  appointed  to  act." 

A  guardian  or  minor  cannot  be  in  default  for  not  assigning 
dower;  and  an  infant  is  not  bound  by  such  assignment,  {f) 


SECTION  VI. 
FRAME   OF    PETITION. 

The  statute  provides  that 

(§  22.)  "  The  petition  shall  set  forth  the  nature  of  the  claim, 
and  particularly  specify  the  premises  in  which  dower  is  claimed, 
and  shall  set  forth  the  interests  of  all  parties  interested  therein 
so  far  as  the  same  are  known  to  the  petitioner,  and  shall  pray 
for  the  assignment  of  such  dowei*." 

Parties  to. — (§  23.)  "  Every  person  having  any  interest  in 
the  premises,  whether  in  possession  or  otherwise,  and  who  is 
not  a  petitioner,  shall  be  made  a  defendant  to  such  petition." 

(/)  Bonner  vs.  Peterson,  44  111.  253 ;  Strawn  vs.  Btrawn,  50  111.  256. 


468  PROCEEDINGS   FOR   DOWER. 

Parties  to,  etc. —  Form  of  Petition,  etc. 

Unknown  defendants. — The  statute  further  provides  that 
(§  24.)  "  When  there  are  any  persons  interested  in  the  prem- 
ises whose  names  are  unknown,  or  the  share  or  quantity  of 
interest  of  any  of  the  parties  is  unknown  to  the  petitioner,  or 
where  such  sliare  or  interest  shall  be  uncertain  or  contingent, 
or  the  ownership  of  the  inheritance  shall  depend  upon  an 
executory  devise,  or  the  remainder  shall  be  contingent,  so  that 
such  parties  cannot  be  named,  the  same  shall  be  so  stated  in 
the  petition. 

(§  25.)  "  All  persons  interested  in  the  premises  in  which 
dower  is  claimed,  whose  names  are  unknown,  may  be  made 
parties  to  such  petition  by  the  name  and  description  of  un- 
known owners  of  the  premises,  or  as  the  unknown  heirs  of 
any  person  who  may  have  been  interested  in  the  same." 

Answer  of  defendants. —  (§  31.)  "The  petitioner  may,  in 
his  petition,  require  the  defendants,  or  any  of  them,  to  answer 
his  petition  on  oath,  in  which  case  the  answer  shall  have  the 
same  effect  as  an  answer  in  chancery  under  oath." 

iVb.  168.     Petition  for  dower  hy  widow. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois. 

The  petition  of  A.  B.,  of,  etc.,  respectfully  represents,  that 
your  petitioner,  on  or  about  the day  of ,  18 — ,  inter- 
married with  B.  B.,  late  of,  etc.,  who  afterwards,  on  or  about 

the day  of ,  18 — ,  departed  this  life  intestate,  leaving 

your  petitioner,  his  widow,  and  C.  B.  and  D.  B.,  his  children 
and  only  heirs  at  law.  That  the  said  B.  B.  during  the  time  of 
said  marriage  with  your  petitioner,  was  seized  in  fee  of  the 
following  described  real  estate,  situate,  lying,  and  being  in  the 

county  of ,  in  the  State  of  Illinois,  to  wit :     {Here  insert 

description  of  the  premises.)  That  your  petitioner,  by  virtue 
of  her  said  marriage,  upon  the  death  of  the  said  B.  B.,  became 
and  was  entitled  to  dower  in  the  lands  above  described,  which 
said  dower  has  never  been  assigned  or  set  off  to  your  petitioner, 
and  she  has  never  received  any  compensation  or  equivalent 
therefor,  or  for  any  part  thereof. 

Your  petitioner  therefore  prays  tlie  aid  of  this  honorable  court 
in  the  premises,  and  that  the  writ  of  summons  may  issue  out 
of  and  under  the  seal  of  this  court,  commanding  the  said  0.  B. 


PROCEEDINGS   FOK   DOWER.  469 

Forms  of  Petition,  etc. —  AflSdavit. 

and  D.  B.,  who  are  made  parties  defendant  hereto,  to  person- 
ally appear  before  this  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in ,  in  the 

county  of ,  on  the Monday  of ,  18 — ,  and  then  and 

there  full,  true,  direct  and  perfect  answer  make  to  all  and  sin- 
gular the  matters  herein  stated,  and  to  stand  and  abide  by  the 
order  of  this  honorable  court  in  the  premises ;  and  that  upon 
the  hearing  hereof,  a  decree  may  be  made  by  this  honorable 
court  that  your  petitioner  recover  dower  in  the  premises  above 
described,  and  that  such  dower  may  be  assigned  and  set  oif  to 
her  in  the  manner  and  according  to  the  provisions  of  the  stat- 
ute in  such  case  made  and  provided ;  and  that  your  petitioner 
may  have  such  other  and  further  relief  in  the  premises  as  equity 
may  require,  and  to  your  honor  may  seem  meet. 

,  Sol.  for  Petitioner.  A.  B. 

{Add  affidavit,  as  follows :) 

No.  169.     Affidavit  to  petition  for  dower. 


ss. 


State  of  Illinois, 
County  of 

On  this day  of ,  18 — ,  personally  appeared   the 

above-named  A.  B.  and  made  oath  and  says  that  she  has 
heard  read  the  foregoing  petition,  and  knows  the  contents 
thereof,  and  that  the  same  are  true  of  her  own  knowledge  in 
substance  and  in  fact,  except  as  to  such  matters  as  are  therein 
stated  to  be  on  information  and  belief,  and  as  to  such  matters 
she  believes  them  to  be  true.  A.  B. 

Subscribed,  etc. 

No.  170.     Petition  hy  a  husband. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois. 

The  petition  of  A.  B.,  of,  etc.,  respectfully  represents,  that 
your  petitioner,  on,  etc.,  intermarried  with  C.  B.,  late  of,  etc., 
who  afterwards,  on,  etc.,  departed  this  life  intestate,  leaving 
your  petitioner,  her  husband,  and  D.  B.,  E.  B.  and  F.  B.,  her 
children  and  only  heirs  at  law.  That  the  said  C.  B.  died  seized 
in  fee  of  the  following  described  real  estate,  situate,  lying,  and 

being  in  the  county  of ,  in  the  State  of  Illinois,  to  wit : 

{Here  descinhe  the  premises.)  That  your  petitioner,  by  virtue 
of  his  said  marriage,  upon  the  death  of  the  said  C.  B.,  became 
and  was  entitled  to  dower  in  the  lands  above  described,  which 
said  dower  has  never  been  assigned  or  set  off  to  your  petitioner. 


470  PROCEEDINGS   FOR  DOWER. 

Forms  of  Petitions. 

and  he  has  never  received  any  compensation  or  equivalent 
therefor,  or  for  any  part  thereof. 

Your  petitioner  therefore  prays  the  aid  of  this  honorable 
court  in  the  premises,  and  that  the  writ  of  summons  may  issue 
out  of  and  under  the  seal  of  this  court,  commanding  the  said 

D.  B.,  E.  B.  and  F.  B.,  who  are  made  parties  defendant  hereto, 
to  personally  appear  before  this  court,  on  the  first  day  of  the 

next term  thereof,  to  be  held  at  the  court  house  in , 

in   the  county  of ,  on  the Monday  of ,  A.  D. 

18 — ,  and  then  and  there  full,  true,  direct  and  perfect  answer 
make  to  all  and  singular  the  matters  herein  stated  and  to  stand, 
to  abide  by  the  order  of  this  honorable  court  in  the  premises ; 
and  that  upon  the  hearing  hereof,  a  decree  may  be  made  by  this 
honorable  court  that  your  petitioner  recover  dower  in  the  prem- 
ises above  described,  and  that  such  dower  may  be  assigned  and 
set  off  to  him  in  the  manner  and  according  to  the  provisions  of 
the  statute  in  such  case  made  and  provided ;  and  that  your 
petitioner  may  have  such  other  and  further  relief  in  the  prem 
ises  as  equity  may  require,  and  to  your  honor  may  seem  meet. 

,  Sol.  for  Petitioner.  A.  B. 

{Add  affidamt,  Wo.  169.) 

No.  171.     Petition  hy  heirs  to  have  dower  assigned. 

To  the  Honorable -,  Judge  of  the Court  of  the  County 

of 5  in  the  State  of  Illinois. 

The  petition  of  A.  B.  and  B.  B.  respectfully  represents  that 
on,  etc.,  one  C.  B.,  late  of,  etc.,  departed  this  life  intestate, 
leaving  E.  B.,  the  mother  of  your  petitioners,  his  widotv,  and 
your  petitioners,  his  children  and  only  heirs  at  law.  That  the 
said  C.  B.  died  seized  in  fee  of  the  following  described  real 

estate,  situate,  lying  and  being  in  the  county  of ,  in  the 

State  of  Illinois,  to  wit:  {Here  descrihe  the  premises^  That 
the  said  E.  B.,  by  virtue  of  her  said  marriage,  upon  the  death 
of  the  said  C.  B.,  became  and  was  entitled  to  dower  in  the 
lands  above  described,  which  said  dower  has  never  been 
assigned  or  set  off  to  her,  and  she  has  never  received  any  com- 
pensation or  equivalent  therefor,  or  for  any  part  thereof. 

Your  petitioner  therefore  prays  the  aid  of  this  honorable 
court  in  the  premises,  and  that  the  writ  of  summons  may  issue 
out  of  and  under  the  seal  of  this  court,  commanding  the  said 

E.  B.,  who  is  made  party  defendant  hereto,  to  personally 
appear  before  this  court,  on   the  first  day  of  the  next  term 

thereof,  to  be  held  at  the  court  house  in in  the  county 

of ,   on  the  Monday  of ,  18 — ,  and  then  and 


PROCEEDINGS   FOR   DOWER.  471 


Process  of  Appearance,  etc. 


there  full,  true,  direct  and  perfect  answer  make  to  all  and 
singular  the  matters  herein  stated,  and  to  stand  and  abide  bj 
the  order  of  tliis  honorable  court  in  tbe  premises  ;  and  that  upon 
the  hearing  hereof,  a  decree  may  be  made  by  this  honorable 
court  that  the  dower  of  the  said  E.  B.,  in  the  premises  above 
described,  may  be  assigned  and  set  off  to  her  in  the  manner 
and  according  to  the  provisions  of  the  statute  in  such  case 
made  and  provided  ;  and  that  your  petitioners  may  have  such 
other  and  further  relief  in  the  premises  as  equity  may  require 
and  to  your  honor  may  seem  meet.  A.  B. 

,  Sol.  for  Petitioners.  B.  B. 

{Add  affidm)it,  No.  169,  ante,  j)age  ^69.) 

SECTION  VII. 
PROCESS  OF  APPEARANCE. 

The  statute  in  respect  to  process  and  service  on  defendants 
in  suits  for  dower  is  as  follows : 

How  summoned. —  (§  26.)  "  The  defendants  to  any  such 
petition  shall  be  summoned  in  the  same  manner  as  defendants 
to  suits  in  chancery,"  {g) 

Unknown  jparties. — (§  27.)  "  Unknown  owners,  or  parties 
in  interest,  of  the  premises,  and  the  unknown  heirs  of  any 
such  persons,  may  be  notified  by  advertisement  as  in  cases  in 
chancery."  (A) 

Nonresident  defendants. —  (§  28.)  "  When  it  shall  appear 
by  affidavit,  filed  as  in  cases  in  chancery,  that  any  defendant 
resides  or  has  gone  out  of  the  state,  or,  upon  due  inquiry,. 
cannot  be  found,  or  is  concealed  within  this  state,  so  that  pro- 
cess cannot  be  served  on  him,  and  the  affiant  shall  state  the 
place  of  residence  of  such  defendant,  if  known,  or  that  upon 
diligent  inquiry  his  place  of  residence  cannot  be  ascertained, 
he  may  be  notified  in  the  same  manner  as  in  such  case  in 
chancery."  (?') 


(g)    Ante,  pp.  14-17. 

(h)    Ante,  p.  81. 

(»)     Ante,  pp.  77-79. 


472  PEOCEEDINGS   FOR  DOWER. 

Interoleader  —  Hearing  and  Decree. 

Service  ly  copy  of  petition. —  (§  29.)  "Non-residents  may  be 
eerved  by  a  copy  of  the  petition  in  the  same  manner  that  such 
defendants  in  chancery  may  be  served  by  a  copy  of  the  bill  of 
complaint,  and  the  service  thereof  may  be  proved  as  in  such 
case  provided."  {j) 

Setting  aside  decree  where  defendants  a/re  not  personally 
served. — The  statute  provides  that  if 

(§  30.)  "  Any  defendant  who  is  not  summoned,  served  with 
a  copy  of  the  petition,  or  shall  not  receive  the  notice  required 
to  be  sent  him  by  mail,  or  the  heirs,  devisees,  executors,  admin- 
istrators, and  other  legal  representatives  of  such  person  may 
appear  and  answer  the  petition  within  the  same  time  and  upon 
the  same  conditions,  and  with  like  effect  as  in  other  cases  in 
chancery."  (k) 

SECTION  VIII. 
INTERPLEADER. 

The  statute  provides  that 

(§  32.)  "  During  the  pendency  of  any  such  suit  or  proceed- 
ing any  person  claiming  to  be  interested  in  the  premises  may 
appear  and  answer  the  petition,  and  assert  his  or  her  rights,  by 
way  of  interpleader;  and  the  court  shall  decide  upon  the 
rights  of  persons  appearing  as  aforesaid,  as  though  they  had 
been  made  parties  in  the  first  instance." 


SECTION  IX. 
HEARING    AND    DECREE. 

The  statute  provides  that  y 

(§  33.)  "  Petitions  for  the  recovery  and  assignment  of 
dower  shall  be  heard  and  determined  by  the  court  upon  the 
petition,  answer,  replication,  exhibits,  and   other  testimony, 

{j)    Ante,  pp.  79-81. 
Ik)    Ante,  pp.  91-94. 


PEOCEEDINGS   FOR  DOWER.  473 

Form  of  Decree  for  Dower,  etc. 

■without  tlie  necessity  of  formal  pleading.  The  court  may 
direct  an  issue  or  issues  to  be  tried  by  a  jury,  as  in  other 
cases  in  equity."  (m) 

No.  172.     Decree  for  dower,  and  appointing  commissioners  to 
make  assignment. 

{Caption,  and  tide,  of  cause  as  in  No.  79,  a,nte,  page  198.) 

This  day  canic  the  petitioner,  by  L.  M.,  her  solicitor,  and 
the  defendants  G.  H.  and  J.  K.,  by  A.  B.,  their  guardian  ad 
litem  y  and  it  a])pearing  to  the  court  that  the  defendants  were 
each  duly  served  with  process  more  than  ten  days  prior  to  the 
commencement  of  the  present  term  of  this  court ;  and  it  ap- 
pearing to  the  court  that  the  defendants  G.  H.  and  J.  K.  were 
minors  under  the  age  of  twenty-one  years,  and  the  court  hav- 
ing appointed  A.  B.,  Esq.,  guardian  ad  litem  for  the  defend- 
ants ;  and  the  defendants,  by  their  guardian  ad  litem,  having 
filed  an  answer  to  said  petition,  and  the  petitioner  her  replica- 
tion thereto ;  and  the  court  having  ordered  said  cause  to  be 
referred  to  the  master  in  chancery  of  this  court  to  take,  and 
report  to  the  court,  the  proof  of  the  matters  alleged  in  said 
petition ;  and  the  said  master  having  made  report  thereof, 
which  is  hereb}'  approved  and  confirmed  by  the  court ;  and  this 
cause  coming  on  to  be  heard,  upon  the  petition,  exhibits,  an- 
swer of  the  defendants,  by  their  guardian  ad  litem,  and  the 
replication  thereto,  together  with  the  testimony  taken  and  re- 
ported to  the  court  by  said  master,  and  the  court  having  heard 
the  arguments  of  counsel ;  and  being  fully  advised  in  the 
premises,  and  on  consideration  thereof,  doth  find,  that  the 
petitioner  is  the  widow  of  one  E.  F.,  who  died  intestate,  on 
etc.,  and,  as  such  widow,  is  entitled  to  dower  of  one-third  part 
of  all  the  lands  whereof  her  said  husband  was  seized  during 
coverture ;  that  during  said  period  of  time  her  husband  was 
seized  in  fee  simple  of  the  following  described  real  estate,  to- 
wit :  {Here  describe  the  la7id.)  That  at  the  time  of  the  death 
of  said  E.  F.  he  left  heirs  at  law,  to-wit :  G.  H.  and  J.  K.,  who 
are  the  children  of  the  said  E.  F.,  and  the  only  persons  inter- 
ested in  said  premises  except  the  petitioner. 

The  court  doth,  therefore,  order,  adjudge,  and  decree  that 
the  petitioner  be  endowed  of  one  full  equal  third  part  of  said 
premises,  and  the  court  doth  hereby  appoint  B.  A.,  D.  C,  and 
F.  G.,  who  are  not  connected  with  any  of  the  parties,  either 

{m)  Ante,  pp.  188-191. 


474  PROCEEDINGS   FOR   DOWER. 

Commissionere  to  Assign  Dower  —  Oath  of  Commissioners. 


by  consanguinity  or  affinity,  and  are  entirely  disinterested, 
commissioners  to  assign  dower  to  the  petitioner.  The  said 
commissioners  will  first  take  the  oath  requij-ed  by  law,  and  then 
go  upon  said  premises,  and  set  off  and  allot  to  the  petitioner 
her  dower  by  metes  and  bounds,  according  to  the  quality  and 
quantity  of  said  premises,  giving  her  the  homestead,  or  dwell- 
ing-house of  the  husband  if  she  desires  it,  and  may  set  oft"  and 
allot  the  dower  in  the  whole  of  such  lands  in  a  body,  or  out  of 
two  or  more  of  snch  tracts  of  land,  in  such  manner  as  they  may 
deem  best  for  all  persons  interested,  and  make  return  in  writing 
under  their  hands  and  seals  to  the  court,  of  their  doings  in  the 
premises  by  virtue  hereof,  and  if  the  said  commissioners  find 
that  said  premises  are  not  susceptible  of  division  without  great 
injurv  thereto,  they  will  so  report  to  the  court. 


SECTION  X. 

COMMISSIONERS    TO    ASSIGN    DOWER. 

Appointment  of. —  It  is  directed  by  statute  that 
(§  34.)  "  When  the  court  adjudges  that  the  one  entitled 
thereto  recover  dower,  it  shall  be  so  entered  of  record,  together 
with  a  description  of  the  land  out  of  which  he  or  she  is  to  be 
so  endowed,  and  the  court  shall  thereupon  appoint  three  com- 
missioners, not  connected  with  any  of  the  parties  either  by 
consanguinity  or  aflfinity,  and  entirely  disinterested,  each  of 
whom  shall  take  the  following  oath : 

No.  173.     Oath  of  commissioners  to  assign  dower. 

{Title,  etc.,  as  in  No.  162,  ante,  page  l^l^lf.^ 

"  I  do  solemnly  swear  that  I  will  fairly  and  impartially 
allot  and  set  oft"  to  A.  B.,  surviving  wife  (or  husband)  of  C.  D., 
her  (or  his)  dower  out  of  the  lands  and  tenements  described 
in  the  order  of  the  court  for  that  purpose,  if  the  same  can  be 
done  consistently  with  the  interests  of  the  estate  according  to 
the  best  of  my  ability :  so  help  me  God."  G.  H. 

Subscribed,  etc.  K.  L. 

M.N. 

Duty  of  comjm,issioners. —  (§  35.)  "  The  commissioners  shall 
go  upon  the  premises,  and  if  the  same  are  susceptible  of 
division,  without  manifest  prejudice  to  the  parties  in  interest, 


PROCEEDINGS   FOR  DOWER.  475 

Duty  of  Commissioners,  etc. —  Report  of. 

shall  set  off  and  allot  to  the  person  entitled  thereto  his  or  her 
dower,  by  metes  and  bounds,  according  to  quality  and  quantity, 
of  all  the  premises  described  in  the  order  of  the  court," 

Dower  may  he  assigned  in  a  hody. — (§  3G.)  "  The  dower 
need  not  be  assigned  in  each  tract  separately,  but  may  be 
allotted  in  a  body  out  of  one  or  more  of  the  tracts  of  lands, 
when  the  same  can  be  done  without  prejudice  to  the  interests 
of  any  person  interested  in  the  premises." 

Homestead^  etc. —  (§  37.)  "  The  surviving  husband  or  wife 
shall  have  the  homestead  or  dwelling-house,  if  he  or  she  desire, 
and  such  allotment  shall  not  affect  his  or  her  estate  of  home- 
stead therein,  but  if  the  dower  is  allotted  out  of  other  lands, 
the  acceptance  of  such  allotment  shall  be  a  waiver  and  release 
of  the  estate  of  homestead  of  the  person  entitled  to  dower, 
and  his  or  her  children,  unless  it  shall  be  otherwise  ordered  by 
the  court." 

The  commissioners  appointed  to  set  off  a  widow's  dower 
have  no  authority  to  make  a  partition  of  land  among  the  par- 
ties entitled  to  it.  They  must  be  sworn,  and  the  statement  of 
that  fact  and  the  oath  they  took  should  accompany  their 
report.  And  a  report  made  by  others  than  the  commissioners 
appointed  by  the  court  would  be  void,  {n) 

In  assigning  dower,  commissioners  should  have  reference  to 
quantity  and  quality,  so  that  the  portion  of  the  widow  shall  be 
equal  in  its  yearly  value  to  one-third  of  the  yearly  value  of  the 
tract  from  which  it  is  assigned,  taking  into  estimation  its 
capacity  for  production  at  the  time,  (o) 

Rejport  of  cominissioners. — The  statute  requires  that 
(§  38.)  "  The  commissioners  shall  make  report  in  writing, 
signed  by  at  least  two  of  them,  showing  what  they  have  done, 
and  if  they  have  made  a  division,  describing  the  premises  al- 
lotted by  metes  and  bounds  or  other  proper  description  ;  and 
the  allotment  so  made,  if  approved  by  the  court,  shall  vest  in 

(n)   L<yyd  vs.  Malone,  23  111.  43. 

{p)    Schnehly  vs.  Schnebly,  26  111.  116. 


476  PROCEEDINGS   FOR  DOWER. 

Allowance  in  Lieu  of  Dower,  etc. 

the  person  entitled  thereto  an  estate  in  the  lands  and  tene- 
ments set  off  and  allotted  to  him  or  her  for  and  during  his 
or  her  natural  life ;  and  the  court  shall  forthwith  cause  such 
person  to  have  possession  by  writ  directed  to  the  sheriff  for 
that  purpose." 

The  form  of  the  report  of  commissioners  in  partition  suits 
may  readily  be  adapted  to  a  report  of  commissioners  to  assign 
dower,  {p) 

Commissioners  sxibject  to  the  directio7i  of  the  court. — The 
statute  provides  that 

(§  42.)  "  The  commissioners  shall,  at  all  times,  be  subject 
to  the  direction  of  the  court ;  and  any  one  or  more  of  them 
may,  before  the  final  confirmation  of  the  report,  be  removed, 
and  others  appointed  in  their  stead. 

SECTION  XI. 

ALLOWANCE   IN    LIEU   OF   DOWEK. 

The  statute  provides  that 

(§  39.)  "  When  the  estate  out  of  which  dower  is  to  be 
assigned  consists  of  a  mill  or  other  tenement  which  cannot  be 
divided  without  damage  to  the  whole,  and  in  all  cases  where 
the  estate  cannot  be  divided  without  great  injury  thereto,  the 
dower  may  be  assigned  of  the  rents,  issues  and  profits  thereof, 
to  be  had  and  received  by  the  person  entitled  thereto  as  tenant 
in  common  with  the  owners  of  the  estate,  or  a  jury  may  be 
impaneled  to  inquire  of  the  yearly  value  of  the  dower  therein, 
who  shall  assess  the  same  accordingly,  and  the  court  shall  there- 
upon enter  a  decree  that  there  be  paid  to  such  person  as  an 
allowance  in  lieu  of  dower,  on  a  day  therein  named,  the  sum 
so  assessed  as  the  yearly  value  of  such  dower,  and  the  like  sum 
on  the  same  day  of  each  year  thereafter  during  his  or  her  natu- 
ral life,  and  may  make  the  same  a  lien  on  any  real  estate  of 
the  party  against  whom  such  decree  is  rendered,  or  cause  the 
same  to  be  otherwise  secured." 

(p)    See  No.  163,  ante,  p.  445. 


PROCEEDINGS   FOR   DOWER.  477 

Damages  for  Refusal  to  Assign  Dower. 

(§  40.)  "  Whenever  any  such  decree  is  made  a  lien  on  any 
real  estate,  as  provided  in  the  preceding  section,  and  a  sale  of 
Biich  real  estate  shall  become  necessary  to  satisfy  any  such  in- 
stallment, the  property  shall  be  sold  subject  to  the  lien  of  the 
installments  not  then  due,  unless  the  court  shall  at  the  time 
direct  otherwise,  and  subsequent  sales  may,  from  time  to  time, 
be  made  to  enforce  such  lien  as  the  installments  may  become 
due,  until  all  the  installments  are  paid." 

Where  a  widow  has  petitioned  to  recover  dower,  and  by 
reason  of  the  indivisibility  of  the  property,  an  allowance  has 
been  made  to  her  in  lieu  of  dower,  the  sum  so  fixed  cannot 
afterwards  be  changed  by  a  court  of  equity  by  reason  of  the 
property  subsequently  becoming  greatly  enhanced  or  depre- 
ciated in  value,  {q) 


SECTION  XII. 
DAMAGES   FOR   REFUSAL   TO   ASSIGN   DOWER. 

The  statute  provides  that 

(§  41.)  "  Whenever  in  any  action  brought  for  that  purpose, 
a  surviving  husband  or  wife  recovers  dower  in  any  lands,  he 
or  she  shall  be  entitled  to  recover  reasonable  damages  from  the 
time  of  his  or  her  demand,  and  a  refusal  to  assign  reasonable 
dower,  which  may  be  assessed  by  the  court,  or  a  jury,  if  re- 
quired, may  be  impaneled  for  that  purpose,  and  execution 
may  issue  therefor." 

From  the  time  a  demand  for  dower  is  made,  the  widow  is 
entitled  to  damages ;  and  the  third  of  the  rents  which  may 
have  accrued  after  the  demand,  is  held,  generally,  to  form  their 
proper  measure,  {r) 

The  commencement  of  a  suit  for  dower  may  be  regarded  as 
a  demand  therefor,  {s) 

iq)    Donoghue  vs.  City  of  Cliicago,  57  111.  235. 

(r)  Atkin  vs.  Merrell,  39  111.  62 ;  but  see  also  Bonner  vs.  Peterson,  44  111. 
253 ;  Peyton  vs.  Jeffries,  50  111.  143 ;  Walsh  vs.  Reis,  50  III.  477 ;  Stowe  vb 
Steele,  45  111.  328 ;  Strawn  vs.  Strawn,  50  111.  256. 

{a)    Id.  lb. 


478  PROCEEDINGS   FOU   DOWER. 

Mode  of  Ascertaining  Value  of  Dower. 

Wliere  the  dower  right  is  in  separate  tracts,  and  the  yearly 
value  thereof  is  assessed,  the  gross  sum  thus  ascertained  should 
not  be  made  a  charge  on  all  the  lands,  but  each  separate  tract 
should  be  charged  only  with  the  value  of  the  dower  that  arises 
therefrom,  {t) 


SECTION  XIII. 
MODE   OF   ASCERTAINING   VALUE   OF   DOWEK,    ETC. 

The  value  of  life  estates  is  usually  ascertained  by  reference 
to  scientific  tables.  In  Massachusetts,  Dr.  Wiggleworth's 
table  has  been  adopted  by  the  courts  as  a  rule  in  estimating  the 
value  of  such  estates,  (u) 

Additional  Illinois  cases  relating  to  dower :  Sutherland  vs. 
Sutherland,  69  111.  481 ;  Mehol  vs.  Todd,  70  111.  295  ;  Lombard 
vs.  Kinzie,  73  111.  44G ;  Gale  vs.  Kinzie,  80  111,  132 ;  Levfers 
vs.  HenJie,  73  111.  405 ;  Greenhawrn  vs.  Austrian,  70  111.  591 ; 
Scammon  vs.  Camphell,  75  111.  223 ;  Welch  vs.  Dutton,  79 
111.  4(;5 ;  Simpson  vs.  Ham,  78  111.  203;  Uitt  vs.  Scammon, 
82  111.  519;  Bowand  vs.  Carroll,  81  111.  224;  Simpson  vs. 
Zeach,  86  111.  286. 

{t)    Atkin  vs.  Merrell,  89  111.  63. 

(■u)   Estabrook  vs.  Hapgood,  10  Mass.  313. 


PROCEEDINGS   FOR   DOWER. 


479 


Tables  to  Ascertain  Value  of  Dower,  etc. 


DR.  WIGGLEWORTH'S   TABLE  (u) 

Clf  observation  in  New  England,  adopted  by  the  Supreme  Court  of  Massachusetts,  as  a  ruU 
for  estimating  the  value  of  life  estates. 


bb 

^ 

c  d 

M 

«tH 

bi 

a 

a 

a 

Age. 

a 

a 

u 

•S  3  2 

Age. 

a 

=3 

Age. 

0 

V  a  a 

t-i 

<u  a  v 

0,-"T3 

S"'""^ 

S 

0,—"0 

Pi 

« 

f^S 

Ph 

Q 

"^S 

P-( 

p 

&5.*3 

At 

33  . 

1,848 

38 

67 

809 

37 

birth. 

4,893 

1,264 

28.15 

34 

1,810 

38 

68 

772 

37 

1 

3,629 

274 

35 

1,772 

35 

28.22 

69 

735 

37 

2 

3,355 

188 

36 

1,737 

35 

70 

698 

37 

10.06 

3 

3,107 

132 

37 

1,702 

35 

71 

666 

37 

4 

3,035 

84 

38 

1,667 

35 

72 

624 

37 

5 

2,951 

58 

40.87 

39 

1,632 

35 

73 

587 

38 

6 

2,893 

55 

40 

1,597 

35 

26.04 

74 

549 

38 

7 

2,R38 

47 

41 

1,562 

35 

75 

511 

37 

7.83 

8 

2,791 

40 

42 

1,527 

35 

76 

474 

37 

9 

2.751 

36 

43 

1,492 

35 

77 

437 

37 

10 

2,717 

28 

39.23 

44 

1,457 

34 

78 

400 

37 

11 

2,687 

27 

45 

1,423 

27 

23.92 

79 

363 

37 

12 

2,660 

27 

46 

1,.396 

27 

80 

366 

35 

5.85 

13 

2,633 

27 

47 

1,.369 

27 

81 

291 

34 

14 

2,606 

27 

48 

1,342 

27 

82 

257 

34 

15 

2,579 

34 

36.16 

49 

1,315 

27 

83 

223 

34 

16 

2,537 

43 

50 

1,288 

27 

21.16 

84 

189 

34 

17 

2,494 

4.3 

51 

1,261 

27 

85 

155 

21 

4.57 

18 

2,451 

43 

52 

1,234 

27 

86 

134 

21 

19 

2,408 

43 

53 

1,207 

27 

87 

113 

21 

20 

2.365 

43 

34.21 

54 

1,180 

27 

88 

92 

20 

21 

2,3-22 

42 

55 

1,153 

27 

18.35 

89 

72 

30 

22 

2,280 

42 

56 

1,126 

27 

90 

52 

8 

3.73 

23 

2,238 

42 

57 

1,199 

27 

91 

44 

7 

24 

2,196 

42 

58 

1,072 

27 

92 

37 

7 

25 

2,154 

40 

32.32 

59 

1,045 

27 

93 

30 

7 

26 

2,114 

38 

60 

1,018 

27 

15.43 

94 

23 

T 

27 

2,076 

38 

61 

991 

27 

95 

16 

6 

1.(9 

26 

2,038 

38 

62 

964 

27 

96 

10 

5 

29 

2,000 

38 

63 

937 

27 

97 

5 

3 

30 

1,962 

38 

30.24 

64 

910 

27 

98 

2 

1 

31 

1,924 

38 

65 

883 

37 

12.43 

99 

1 

1 

32 

1,886 

38 

66 

846 

37 

A  TABLE 

Showing  the  present  value  of  an  annuity  of  one  dollar,  from  1  to  S6  years,  the  calculation 
being  made  at  (he  rate  of  5  per  cent,  per  annum. 


Years. 

Dollars. 

Cents. 

Years. 

Dollars. 

Cents. 

Years. 

Dollars. 

Cents. 

1 

0 

95.23 

13 

9 

39.35 

25 

14 

09.39 

2 

1 

8.5.94 

\l 

9 

89.86 

26 

14 

37.51 

3 

2 

72.. 32 

10 

37.96 

27 

14 

64.30 

4 

3 

54.59 

16 

10 

83.77 

28 

14 

80.91 

5 

4 

32.94 

17 

11 

27.40 

29 

15 

14.10 

6 

5 

07.56 

18 

11 

68.95 

30 

15 

37.24 

7 

5 

78.63 

19 

12 

08.53 

31 

15 

59.28 

8 

7 

46.32 

20 

12 

46.22 

32 

15 

80.96 

9 

8 

10.78 

21 

12 

82.11 

33 

16 

00.25 

10 

7 

72.17 

22 

13 

16..30 

34 

16 

19.29 

11 

8 

30.64 

23 

13 

48.85 

35 

16 

37.41 

12 

8 

86.32 

24 

13 

79.86 

36 

16 

64.68 

(»)  Memoira  of  the  American  Academy  of  Arts  and  Sciences,  vol.  2,  p.  131. 


480 


PROCEEDINGS  FOR  DOWER. 


Tables  to  ABcertain  Value  of  Dower,  etc. 


The  rate  of  five  per  cent,  interest  per  annum  was  taken  be- 
cause the  chief  object  is  to  estimate  the  value  of  dower.  And 
it  was  observed  that  experience  has  shown  that  in  estimating 
income  from  real  estate,  no  more  than  five  per  cent,  interest 
per  annum  can,  in  a  majority  of  cases  be  allowed. 

Where  the  income  is  to  be  estimated  at  six  er  cent,  per 
annum,  the  Portsmouth  or  Northampton  table  can  be  used. 

PORTSMOUTH   OR   NORTHAMPTON    TABLES, 

And  mode  of  computing  value  of  life  interest,  etc. 


No.  of  years 

No  of  yeare 

Age. 

purchase 
the  annuity 

Age. 

purchase 
the  annuitj 

is  worth. 

is  worth. 

1 

10.107 

48 

9.707 

2 

11.724 

49 

9.563 

3 

12.348 

50 

9  417 

4 

12.769 

51 

9.273 

5 

12.962 

13.156 

52 

9 129 

6 

53 

8.980 

7 

13.275 

54 

8.827 

8 

13.337 

55 

8.670 

9 

13.335 

56 

8.509 

10 

13.285 

57 

8.343 

11 

13.212 

58 

8.173 

12 

13.130 

59 

7.999 

IS 

13.044 

60 

7.820 

14 

12.953 

61 

7.637 

15 

12.857 

12.755 

62 

7.449 

16 

63 

7.253 

17 

12.655 

64 

7.052 

18 

12.562 

65 

6.841 

19 

12.477 

66 

6.625 

20 

12.398 

67 

6.405 

21 

12.329 

68 

6.179 

22 

12.265 

69 

5.949 

23 

12.200 

70 

5.715 

24 

12.132 

71 

5.479 

35 

12.063 

72 

5.241 

26 

11.992 

73 

4.781 

27 

11.917 

74 

4.565 

28 

11.841 

75 

4.354 

29 

11.763 

76 

4.154 

30 

-.   11.682 

77 

3.952 

31 

11.598 

78 

3.742 

32 

11.512 

79 

3.514 

33 

11.423 

80 

3.281 

34 

11.331 

81 

3.156 

35 

11.2.36 

82 

2.926 

36 

11.1.37 

83 

2.713 

37 

11.035 

84 

2.551 

38 

10.929 

10.819 

85 

2402 

39 

86 

2.266 

40 

10.705 

87 

2.138 

41 

10.589 

88 

2.031 

42 

10.473 

89 

1.882 

43 

10.356 

90 

1.689 

44 

..10.235 

91 

1.422 

46 

10.110 

92 

1.136 

46 

9.980 

93 

94 

0.806 

47 

9.846 

0.518 

PKOCEEDINGS   FOR   DOWER.  481 

Tables  to  Ascertain  Value  of  Dower,  etc. 

Rule  for  coTnputing  the  value  of  life  estate  or  annuity  : 

Calculate  the  interest  at  six  per  cent,  for  one  year  upon  the 
sum  to  the  income  of  which  the  person  is  entitled.  Multiply 
this  interest  by  the  number  of  years'  purchase  set  opposite  the 
person's  age  in  the  table,  and  the  product  is  the  gross  value 
of  the  life  estate  of  such  person  in  said  sum. 

EXAMPLES. 

Suppose  a  widow's  age  is  37,  and  she  is  entitled  to  dower  in 
real  estate  worth  $350.75.  One  third  of  this  is  $116.91|. 
Interest  on  $116.91  one  year  at  6  per  cent,  is  $7.01.  The 
number  of  years'  purchase  which  an  annuity  of  one  dollar  is 
worth,  at  the  age  of  37,  as  appears  by  the  table,  is  11  years 
and  .0035  parts  of  a  year,  wdiich,  multiplied  by  7.01,  the 
income  for  one  year,  gives  $77.35  and  a  fraction  as  the  gross 
value  of  her  right  of  dower. 

Suppose  a  man,  whose  age  is  50,  is  tenant  by  the  courtesy 
in  the  whole  of  an  estate  worth  $9,000.  The  annual  interest 
on  the  sum  at  6  per  cent,  is  $540.  The  number  of  years'  pur- 
chase which  an  annuity  of  one  dollar  is  worth  at  the  age  of 
50,  as  per  table,  is  9.417  parts  of  a  year,  which,  multiplied  by 
540,  the  value  of  one  year,  gives  $5,085.18  as  the  gross  value  of 
his  life  estate  in  the  premises  or  the  proceeds  thereof. 

The  values  in  this  table  are  calculated  on  the  supposition 
that  the  annuities  are  payable  yearly ;  if  payable  half-yearly, 
one-fifth  of  a  year's  purchase  should  be  added  to  those 
values,  {w) 

SECTION  XIV. 

MISCELLANEOUS    PKOVISIONS    OF    THE    STATUTE. 

Dower  assigned  in  applications  to  county  court  for  leave 
to  sell  lands  to  pay  debts. —  (§44.)  "Whenever  application  is 
made  to  a  county  court  for  leave  to  sell  real  estate  of  a  de- 
ceased person  for  payment  of  debts,  or  for  the  sale  of  real 

(w)  See  Jackson  vs.  Edwards,  7  Paige,  408,  as  to  computation  of  dower 
right. 

'     31 


482  PEOCEEDINGS  FOR  DOWER. 


Waste  by  Persons  to  Whom  Dower  is  Assigned. 

estate  of  any  ward,  as  authorized  by  law,  and  it  appears  that 
there  is  a  dower  and  homestead,  or  either  interest  in  the  land 
sought  to  be  sold,  such  court  may,  in  the  same  proceeding,  on 
the  petition  of  the  executor,  administrator,  guardian  or  conserva- 
tor, or  the  person  entitled  to  dower  and  homestead,  or  either 
therein,  cause  the  dower  and  homestead,  or  either,  to  be  as- 
signed, and  shall  have  the  same  power,  and  may  take  like  pro- 
ceedings therefor,  as  hereinbefore  provided  for  assignment  of 
dower."  (x) 

Waste  hy persons  to  whom  doiver  is  assigned. — (§  45.)  "IS"© 
person  who  is  endowed  of  any  lands  shall  commit  or  suffer 
any  waste  thereon  on  penalty  of  forfeiting  that  part  of  the 
estate  whereupon  such  waste  is  made,  to  him  or  them  that 
have  the  immediate  estate  of  freehold  or  inheritance  in  remain- 
der or  reversion ;  but  every  person  so  endowed  shall  maintain 
the  houses  and  tenements  with  the  fences  and  appurtenances 
in  good  repair,  and  shall  be  liable  to  the  person  having  the 
next  immediate  estate  of  inheritance  therein  for  all  damage 
occasioned  by  any  waste  committed  or  suffered  by  him  or  her." 

(§  47.)  "  Section  78  of  an  act  entitled  '  An  act  in  regard  to 
tlie  administrations  of  estates,'  approved  April  1,  1872,  is 
hereby  repealed :  Provided,  that  this  section  shall  not  be  so 
construed  as  to  affect  any  rights  existing  or  actions  pending  at 
the  time  this  act  shall  take  effect." 

{X)    Laws  of  1875,  p.  75;  Rev.  Stat.  (1877)  430. 


CHAPTER  XXXIl. 

BILLS    FOE   DIVOECE. 

Section  1.    Nature  of. 

2.  Cause  for  Divorce. 

3.  •  Jurisdiction  of,  and  Where  Commenced. 

4.  Natural  Impotenct. 

5.  Hating  a  Wife  or  Husband  Living  »at  Time  of  MAiiRLA.aa. 

6.  Adultery. 

7.  Willful  Desertion. 

8.  Habitual  Drunkenness. 

9.  Attempting  the  Life  op  the  Other. 

10.  Extreme  and  Eepeated  Cruelty. 

11.  Conviction  of  Crime,  etc. 

12.  Defenses  to. 

13.  Injunction  in. 

14.  Hearing  and  Decrees. 

15.  Alimony  and  Expenses. 


SECTION  I. 
NATUEE    OF, 

A  divorce  is  tlie  dissolution  of  a  marriage  contracted  be- 
tween a  man  and  a  woman,  by  the  judgment  of  a  court  of 
competent  jurisdiction,  or  by  an  act  of  the  legislature.  It  is 
so  called  from  the  diversity  of  the  minds  of  those  who  are 
married,  because  such  as  are  divorced  go  each  a  different  way 
from  the  other,  [a]  Until  a  decree  of  divorce  be  actually 
made,  neither  party  can  treat  the  other  as  sole,  even  in  cases 
where  the  marriage  is  utterly  null  and  void  for  some  preexist- 
ing cause.  (5)  A  decree  of  divorce  must  also  be  made  during 
the  lifetime  of  both  the  parties.  After  the  decease  of  either 
the  marriage  Avill  be  deemed  legal  in  all  respects,  (c) 


(a)    Kedly's  Civ.  aud  Eccl  L.  pp.  11,  112  ;  Bouv.  L.  D,  439. 

(6)    3  Penn.  Law  Journal,  151,  153. 

(c)    Reeves,  Dom.  Rel.  204  ;  1  Black,  Com.  440  ;  Bour.  L.  D.  439,  440. 


484  BILLS   FOR   DIVORCE. 

Nature  of. 

Divorces  are  of  two  kinds:  First,  d  viticulo  matriTnonii  — 
a  total  severance  of  the  marriage  tie ;  and,  second,  d  inensa  et 
thoro — "from  bed  and  board," — which  merely  separates  the 
parties. 

The  divorce  d  vinculo  matrimonii  was  never  granted  by  the 
ecclesiastical  law,  except  for  the  most  grave  reasons.  These, 
according  to  Lord  Coke,  are  causa  jprocontractus,  causa  rrietus^ 
causa  iinpote7itioB,  seu  fridiyitatis,  causa  ajjinitatis,  et  causa 
consanguinitatis  —  on  account  of  precontract,  fear,  impotence 
or  frigidity,  affinity  or  consanguinity,  {d)  In  England,  such  a 
divorce  bastardizes  the  issue,  and,  generally  speaking,  is 
allowed  only  on  the  ground  of  some  preexisting  cause ;  (e)  but 
sometimes  by  an  act  of  parliament  for  a  supervenient  cause.  (/" ) 
When  the  marriage  was  dissolved  for  canonical  causes  of 
impediment,  existing  previous  to  its  taking  place,  it  was  de- 
clared void  ab  initio. 

In  some  of  the  states  of  the  Union  divorces  d  mnculo  are 
granted  by  the  state  legislatures  for  such  causes  as  may  be 
sufficient  to  induce  the  members  to  vote  in  favor  of  granting 
them ;  and  they  are  granted  by  the  courts  to  which  such  juris- 
diction is  given,  for  certain  causes  particularly  provided  for  by 
law.  In  some  states  the  legislature  never  grants  a  divorce 
until  after  the  courts  have  decreed  one.  This  is  still  the  case 
in  Mississippi.  In  Wisconsin  the  constitution  prohibits  the 
legislature  from  granting  divorces. 

In  Illinois  the  only  divorce  authorized  is  d  vinculo  matri- 
monii, and  it  is  granted  as  well  for  causes  arising  after  as  for 
those  existing  before  marriage,  {cj) 


(d)  Co.  Litt.  235,  a. 

(e)  Reeves,  Dom.  Rcl.  204-205. 

(/)  1  Black.  Com.  440;  Bouv.  L.  D.  440. 
ig)   Cla/rk  vs.  Lott,  11  111.  105. 


BILLS   FOR   DIVORCE.  485 

Causes  for  Divorce. —  Jurisdiction  of,  and  Where  Commenced. 

SECTION  II. 
CAUSES    FOR    DIYOKCE. 

The  statutes  of  the  different  states  vary  as  to  the  causes  of 
divorce.  In  Illinois,  the  revised  statute  of  1874,  in  force  July 
1,  1874,  provides  that 

(§  1.)  "'  In  every  case  in  which  a  marriage  has  been,  or 
hereafter  may  be  contracted  and  solemnized  between  any  two 
persons,  and  it  shall  be  adjudged,  in  the  manner  hereinafter 
provided,  that  either  party,  at  the  time  of  such  mai-riage,  was 
and  continues  to  be  naturally  impotent ;  or  that  he  or  she  had 
a  wife  or  husband  living  at  the  time  of  such  marriage ;  or  that 
either  party  has  committed  adultery  subsequently  to  the  mar- 
riage ;  or  has  willfully  deserted  or  absented  himself  or  herself 
from  the  husband  or  wife,  without  any  reasonable  cause,  for 
the  space  of  two  years ;  or  has  been  guilty  of  habitual  drunk- 
enness for  the  space  of  two  years ;  or  has  attempted  the  life 
of  the  other  by  poison  or  other  means  showing  malice ;  or  has 
been  guilty  of  extreme  and  repeated  cruelty ;  or  has  been  con- 
victed of  felony  or  other  infamous  crime,  it  shall  be  lawful  for 
the  injured  party  to  obtain  a  divorce  and  dissolution  of  such 
marriao^e  contract." 


SECTION  III. 

JUBISDIOnON'   OF,    ANT)   WHERE   COMMENCED. 

The  statute  of  Illinois  provides  that 

(§  4.)  "  The  circuit  courts  of  the  respective  counties  and 
the  superior  court  of  Cook  county  shall  have  jurisdiction  in  all 
cases  of  divorce  and  alimony  allowed  by  this  act." 

Where  commenced. — The  statute  further  requires  that 

(§  5.)  "  The  proceedings  shall  be  had  in  the  county  where 

the  complainant  resides,  but  process  may  be  directed  to  any 

county  in  the  state." 


486  BILLS   FOR   DIVORCE. 

Complainant  must  be  a  Resident. —  Impotency. 

Complainant  must  he  a  resident^  etc. — The  statute  provides 
that 

(§  2.)  "  No  person  shall  be  entitled  to  a  divorce,  in  pur- 
suance of  the  provisions  of  this  act,  who  has  not  resided  in 
the  state  one  whole  year  next  before  filing  his  or  her  bill  or 
petition,  unless  the  offense  or  injury  complained  of  was  com- 
mitted within  this  state,  or  whilst  one  or  both  of  the  parties 
resided  in  this  state." 

Effect  of  divorce. —  (§  3.)  "  No  divorce  shall  in  anywise 
affect  the  legitimacy  of  the  children  of  such  marriage,  except 
in  cases  where  the  marriage  shall  be  declared  void  on  the 
grounds  of  a  prior  marriage."  {g) 

It  will  be  convenient  to  consider  the  several  grounds  for 
divorce  in  Illinois  separately,  under  various  sections,  which 
will  be  done. 

SECTION  IV 
NATHEAL   INPOTENOY   AT   TIME    OF   MARKIAGE. 

We  have  seen,  that  under  the  first  section  of  the  revised 
divorce  act,  if  either  party  at  the  time  of  marriage  was,  and 
continue  to  be,  naturally  impotent,  it  is  a  good  ground  for 
divorce  in  Illinois. 

It  has  always  been  deemed  requisite  to  the  entire  validity  of 
every  marriage,  not  only  that  the  parties  should  be  of  different 
sex,  but  that  they  shall  be  essentially  complete  in  their  several 
organizations  and  capabilities.  "  As  the  first  cause  and  reason 
of  matrimony,"  says,  Ayliffe,  "  ought  to  be  the  design  of  having 
offspring ;  so  the  second  ought  to  be  the  avoiding  of  fornica- 
tion." {h)  And  the  law  recognizes  these  two  "  as  the  principal 
ends  of  matrimony,"  namely,  "  a  lawful  indulgence  of  the  pas- 
sions to  prevent  licentiousness,  and  the  procreation  of  children 
according  to  the  evident  design  of  Divine  Providence.  (*) 

When  one  knowingly  marries  another  who  is  past  the  age 

ig)    See  Clark  vs.  Lott,  11  111.  105. 

{h)   Ayl.  Parer.  360. 

{i)    1  Robert,  379 ;  3  Phill.  325, 1  Eng.  Eccl.  R.  408,  409. 


BILLS   FOR  DIVORCE.  487 

Natural  Impotency. 

of  procreation,  he  cannot  complain  on  the  ground  of  unfruit- 
fiilness.  {j  )  If  the  party  married  be  within  that  age,  and  have 
the  power  of  copulation,  there  is,  ordinarily,  no  means  of  cer- 
tainly determining  that  at  the  time  of  the  marriage  an  inculpa- 
ble sterility  existed.  Indeed  medical  writers  have  stated  with- 
out qualification,  that  there  is  no  buch  means,  {]c)  which  is 
probably  true,  wherever  there  is  no  discoverable  malformation. 
In  all  the  reported  cases,  therefore,  the  principal  inquiry  has 
been  as  to  the  ability  to  copulate,  and  when,  from  any  cause 
which  is  irremediable,  there  is  an  inability,  the  object  of  the 
marriage  is  frustrated.  {I) 

Every  marriage  contract  implies  a  capacity  in  the  parties  of 
consummation,  {m)  When  a  person,  knowing  his  own  defect, 
induces  another,  who  is  ignorant  of  it,  to  marry  him,  he  com- 
mits a  gross  fraud  and  a  grievous  injury ;  [n)  and  when  he  is 
himself  ignorant  of  it,  there  is  equally  a  violation  of  the  con- 
tract, and  an  equal  injury,  though  there  be  no  intentional 
wrong.  In  the  former  case,  the  marriage  would  be  clearly 
voidable  on  the  single  ground  of  fraud,  if  the  principles  which 
govern  ordinary  contracts  were  to  be  applied  to  it ;  and,  in  the 
latter  case,  it  would  seem  to  be  equally  so  on  the  ground  of  mis- 
take, and  the  violation  of  the  implied  warranty.  (<?)  But  owing 
to  the  peculiar  nature  of  the  contract  of  marriage,  this  infirmity, 
though  sometimes  treated  as  a  pure  fraud,  {p)  is,  according  to 
better  opinions,  regarded  in  a  somewhat  different  aspect,  [q) 

This  matrimonial  impediment  is  termed  impotence,  or  impo- 
tency. It  may  be  difficult  to  give  to  it  a  perfectly  accurate  and 
unexceptional  definition :  in  Mr,  Shelford's  work,  it  is  said  to 

( j)   Brown  vs.  Brown,  1  Hagg,  533,  3  Eng.  Eccl.  R.  229. 

{k)    Guy's  Forensic  Med.  Amer.  Ed.  51. 

il)    Bishop  on  Mar.  &  Div.  §  226. 

{m)  Chitty's  Med.  Juris.  378;  Poynter  on  Mar.  &  Div.  123. 

{n)   Briggs  vs.  Morgan,  3  Pliill.  325,  1  Eng.  Eccl.  R.  408, 410. 

{o)  Bishop  on  Mar.  &  Div.  §  99, 100,  117,  227;  Rutherford's  Inst.  1,  ch. 
15,  §  9  ;  Rogers,  Eccl.  La^v,  640. 

{p)  Benton  vs.  Benton,  1  Day,  111 ;  Guilford  vs.  Guilford,  9  Conn.  321, 
327. 

iq)  Burtis  vs.  Biirtis,  1  Hopk.  Ch.  R.  557  ;  Perry  vs.  Perry,  2  Paige,  Ch. 
R.  501 ;  Bishop  on  Mar.  &  Div.  i^  227. 


488  BILLS  FOR  DIVORCE. 

Natural  Im  potency. 

"  consist  in  the  incapacity  for  copulation,  or  in  the  impossibility 
of  accomplishing  the  act  of  procreation."  ('/•)  Frazer,  in  his 
work  on  Domestic  Relations,  defines  it  as  the  "  incapacity  of 
eitlier  spouse  for  the  act  of  copulation,  or  as  some  think,  the 
want  of  power  to  procreate  children."  [s)  Webster  has  it,  "  ina- 
bility to  beget."  While  Bishop  defines  it  as  ^  such  an  incurable 
incapacity  that  the  party  can  neither  copulate  nor  procreate,  {t) 

Impotence,  to  be  a  ground  for  a  divorce,  must  exist  at  the 
time  of  marriage ;  (u)  and  it  must  be  incurable,  (vj)  And  the 
burden  of  proof  is  on  the  complainant  to  establish  that  it  ex- 
isted at  the  time  of  the  marriage,  and  that  it  is  incurable,  {w) 

The  sentence  of  divorce  on  the  ground  of  impotency  declares 
the  marriage  void  from  the  beginning,  (a;) 

On  a  bill  by  the  husband  for  the  wife's  impotency,  it  was 
held,  that  the  wife  will  be  compelled  to  submit  to  a  surgical 
examination ;  but  if  she  has  already  submitted  to  an  examina- 
tion by  competent  surgeons,  whose  testimony  can  be  "readily 
obtained,  she  will  be  excused  from  further  examination,  {y) 

A  motion  for  an  order  to  compel  the  defendant  to  submit  to 
an  examination  is  addressed  to  the  discretion  of  the  chancellor, 
and  his  ruling  is  held  not  to  be  appealable,  (s) 

Where  there  is  reason  to  believe  that  the  incapacity  can  be 
removed  by  a  slight  surgical  operation,  the  court  will  not  annul 
the  marriage.  But  the  court  has  no  power  to  compel  a  wife 
to  submit  to  such  operation ;  and  her  refusal  to  do  so  furnishes 
no  ground  to  annul  the  marriage.  («) 

(r)    Sholford  ou  Mar.  &  Div.  202. 

(s)    Frazer  on  Dom.  Rel.  53. 

(t)     Bishop  ou  Mar.  &  Div.  §  228. 

(u)   Bishop  on  Mar.  &  Div.  §  235  ;  Bascomb  vs.  Bascomb,  5  Foster,  267. 

(■»)  Ferris  vs.  Ferris,  8  Conn.  166  ;  2  Atkiu.  188 ;  J.  O.  vs.  H.  G.  33  Md. 
401. 

(ic)  Newell  vs.  Newell,  9  Paige,  Ch.  E.  25 ;  Devaribagh  vs.  Denanbagli,  5 
Paige,  Ch.  R.  554 ;  Welde  vs.  Welde,  2  Lee,  580 ;  Bishop  on  Mar.  &  DJv.  §  235. 

(x)    Bishop  on  Mar.  &  Div.  §  46,  53,  59,  226,  227,  235,  261. 

(y)  Devanhagh  vs.  Devanbagh,  5  Paige,  Ch.  R.  554 ;  see  Newell  vs.  Newell, 
9  Paige,  Ch.  R.  25. 

(s)    Anon.  35  Ala.  326  ;  see  LeBarron  vs.  LeBarron,  35  Vt.  365. 

(a)   Devanbagh  vs.  Decanlngh,  6  ''aigi  .  Ch.  175. 


BILLS   FOR   JJiVORCE.  489 

Form  of  Bill  on  the  Ground  of  Impotency. 

No.  17 Ji-.     Bill  for  divorce  on  the  ground  of  hnpotenGy. 

To  the  Honorable ,  Judge  of  the Court  of  tlie  Countj 

of ,  ill  the  State  of  llliuois, 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto 
your  honor,  that  on,  etc.,  your  orator  intermarried  with  one 
C.  D.,  now  C.  )^..,  at,  etc. ;  and  that  your  orator  is  now,  and  has 
been  a  resident  of  this  state  for  over  one  whole  year  next  be- 
fore the  tiling  of  this  bill. 

Your  orator  further  represents,  that  immediately  after  the 
said  marriage  took  place  your  orator  discovered  that  the  said 
C.  B.,  at  the  time  of  her  intermarriage  with  your  orator  as 
aforesaid,  was,  and  has  continued  to  be  naturally  impotent,  and 
physically  incapable  of  entering  into  the  marriage  state  ;  that, 
etc.,  {Ilere  state  the  particidar  character  of  the  ionjjotency  /) 
so  that  the  said  marriage  could  not  be  consummated  by  the 
sexual  intercourse  of  the  parties. 

And  your  orator  further  represents,  that  as  he  is  inlbrmed 
and  believes,  and  so  charges  the  fact  to  be,  that  the  said  im- 
potency and  physical  incapacity  of  the  said  C.  B.  still  exists 
and  is  incurable. 

Forasmuch,  therefore,  as  your  orator  is  Avitliout  remedy  in 
the  premises,  except  in  a  court  of  equity  ;  and  to  the  end  that 
the  said  C.  B.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  and 
that  the  said  marriage  between  your  orator  and  the  said  C.  B. 
may  be  dissolved  and  declared  null  and  void  by  the  decree 
of  this  court,  according  to  the  statute  in  such  case  made  and 
provided  ;  and  that  your  orator  may  have  such  other  and  fur- 
ther i-elief  in  the  premises  as  equity  may  require  and  to  your 
honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sheriif  of  the  said  county  of  , 

commanding   him  that    he    summon    the  defendant  C.  B.  to 

appear  before  the  said  court,  on  the  first  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in  — — ,  in  the 
coun^ty  of aforesaid,  then  and  there  to  answer  this  bill,  etc. 


490  BILLS   FOR  DIVOECE. 

Divorce  on  the  Ground  of  Former  Marriage. —  Form  of  Bill. 


SECTION  V. 

ON    ACCOUNT    OF    HAVING    A   WIFE    OR    HUSBAND    LIVING    AT    THE 
TIME    OF    MARRIAGE. 

The  statute  authorizes  a  dissolution  of  a  marriage  where 
either  party  had  a  wife  or  husband  living  at  the  time  of  such 
marriage. 

A  second  marriage,  while  the  first  remains  undissolved  by 
death  or  divorce,  is,  by  the  common  law,  null  and  void.  (5) 
But  to  render  the  second  marriage  null,  the  first  must  be 
valid,  (c) 

A  husband  is  not  entitled  to  a  decree  of  nullity  of  marriage 
on  the  ground  that  the  former  husband  of  his  wife  obtained  a 
divorce  by  her  fraudulent  collusion,  {d) 

Where  a  marriage  is  declared  void  on  the  grounds  of  a 
prior  marriage,  the  children  of  the  subsequent  marriage  are 
illegitimate,  {e) 

No.  175.     Bill  for  a  divorce  on  the  ground  of  a  former  rp,a^- 
riage,  etc.,  praying  to  he  allowed  to  resume  maiden  name. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  oratrix,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  her  maiden  name  was  A.  M.,  and  she  was  the 
daughter  of  L.  M.,  late  of,  etc.,  now  deceased ;  that  on,  etc., 
your  oratrix  intermarried  with  one  C.  B.,  the  defendant  here- 
inafter named,  at,  etc. ;  and  that  your  oratrix  is  now,  and  has 

been  a  resident  of  this  state  for  more  than years  last  past ; 

that  your  oratrix  lived  and  cohabited  with  the  said  C.  B.,  as 
his  wife,  from  the  time  of  their  marriage  until,  etc.,  when  she 
left  him,  and  has  ever  since  refused  to  live  and  cohabit  with 
him. 

(6)  Oaines  vs.  Relf,  12  How.  U.  S.  472 ;  Gaines  vs.  Hennen,  24  How.  U. 
S.  554 ;  Carre  vs.  Carre,  2  Yeates,  207 ;  2  Kent's  Com.  79  ;  Bishop  on  Mar. 
&  Div.  §  205. 

(c)  2  Add.  471  ;  2  Eng.  Eccl.  R.  381  ;  12  Jur.  174 ;  11  Queen's  B.  Rep.  173. 

(d)  Einnier  vs.  Kinnier,  53  Barb.  N.  T.  454. 

(e)  Clark  vs.  Lott,  11  111.  105  ;  see  §  3  of  the  revised  divorce  act  of  1874. 


BILLS   FOR  DIVORCE.  491 

Adultery.  . 

Your  oratrix  further  represents,  that  the  said  C.  B.,  at  the 
time  of  such  marriage  with  your  oratrix,  had  a  wife,  who  was 
then,  and  is  still  living,  to  wit :  one  E.  B.,  of,  etc. ;  that  the 
said  C.  B.  and  E.  B.  were  lawfully  married  at,  etc.,  on,  etc., 
and  for  a  considerable  time  thereafter  lived  and  cohabited  as 
husband  and  wife ;  which  said  marriage  was  at  the  time  of  the 
marriage  of  your  oratrix  and  the  said  0.  B.,  still  subsisting ;  by 
reason  whereof  the  said  marriage  of  your  oratrix  and  the  said 
C.  B.  was,  and  is,  wholly  null  and  void. 

Forasmuch,  therefore,  as  your  oratrix  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity  ;  and  to  the  end  that 
the  said  C.  B.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  and 
that  the  said  marriage  between  your  oratrix  and  the  defendant 
may  be  decreed  by  the  court  to  be  null  and  void,  according  to 
the  statute  in  such  case  made  and  provided ;  that  your  oratrix 
may  be  allowed  to  resume  her  maiden  name  of  A.  M.  as  before 
marriage ;  and  that  your  oratrix  may  have  such  other  and  fur- 
ther relief  in  the  premises  as  equity  may  require,  and  to  your 
honor  may  seem  meet. 

May  it  please  your  honor,  etc.  {Pra/y  process  as  in  No.  17 Jf, 
ante,  j)age  JiS9.)  > 


SECTION  VI. 

ADULTEKY. 

The  statute,  as  we  have  already  seen,  provides  that  a  divorce 
may  be  granted  where  either  party  has  committed  adultery 
subsequently  to  the  marriage.  A  similar  provision  is  in  the 
statutes  of  almost  every  state  of  the  Union. 

A  suit  for  a  divorce,  on  the  ground  of  adultery,  will  be  barred 
by  proof  of  a  like  offense  by  the  complaining  party,  though 
committed  even  during  the  pendency  of  the  suit.  {/) 

Adultery,  to  be  the  foundation  for  a  divorce,  must  be  volun- 
tary. If  a  wife  be  compelled  by  force,  or  ravishment,  or  has 
carnal  knowledge  of  a  man  not  her  husband,  through  error  or 

(/)  Davis  vs.  Davis,  19  111.  334 ;  Christianberry  vs.  Christianherry,  3 
Blackf .  203 ;  Mattox  vs.  Mattox,  2  Ham.  233  ;  Lesseuer  vs.  Lesseuer,  31  Barb. 
N.  T.  330 ;  Clapp  vs.  Clapp,  97  Mass.  531 ;  Eibet  vs.  Bibet,  39  Ala.  348. 


492  BILLS   FOE  DIVOKCE. 


Adultery. —  Circumstantial  Evidence. 

mistake,  she  believing  him  to  be  her  husband,  {g)  or  while  she 
is  insane,  {h)  or  by  her  husband's  procurement,  {i)  or  marry 
another  man  througli  a  belief  that  her  former  husband  is  dead, 
and  during  the  continuance  of  such  belief  lives  in  matrimonial 
intercourse  with  him,  (j/)  a  divorce  will  not  be  granted. 

Circuinstantial  evidence. — Adultery  being  peculiarly  a  crime 
of  darkness  and  secrecy,  may  be,  and  ordinarily  nmst  be,  estab- 
lished by  circumstantial  evidence,  iji) 

To  prove  adultery  by  circumstantial  evidence,  two  points  are 
to  be  ascertained  and  established  —  the  opportunity  for  the 
crime,  and  the  will  to  commit  it.  Where  both  of  these  are 
established,  the  court  will  infer  guilt.  {V) 

^\iQ  jpaHicejps  criminis  is  a  competent  witness  for  the  com- 
plainant; (m)  but  a  court  wilb seldom  grant  a  divorce  on  such 
testimony  unless  corroborated,  {n) 

It  is  not  sufficient,  to  convict  parties  who  may  be  supposed 
willing  to  commit  adultery,  to  prove  that  they  were  in  a  posi- 
tion where  it  was  possible  to  commit  it.  It  must  be  shown 
that  they  were  together  under  suspicious  circumstances,  whicli 
cannot  be  easily  accounted  for  unless  they  had  that  design,  or 
which  could  not  be  well  explained  without  it.  {o) 

(g)  Ayl.  Parer.  226 ;  Frazer  on  Dom.  Rel.  81,  657  ;  Bishop  on  Mar.  &  Div. 
§  204,  418. 

(h)  Broadstreet  vs.  Broadstreet,  7  Mass.  474;  MatcMn  vs.  Matchin,  6 
Barr,  332;  Nichols  vs.  Mc7t,ols,  31  Vt.  328  ;  see  Wray  vs.WraT/,  19  Ala.  522  ; 
Wray  vs.  Wrap,  33  Ala.  187. 

(i)  Pierce  vs.  Pierce,  3  Pick.  299 ;  Myers  vs.  Myers,  41  Barb.  X.  Y.  114; 
Henden  vs.  Henden,  6  C.  E.  Greene,  61. 

U)    Valleau  vs.  Valleau,  6  Paige,  Ch.  207 ;  Biskop  on  Mar.  &  Div.  g  418. 

(A-)  4  Porter,  467  ;  Matchin  vs.  Mntchin,  6  Barr,  332  ;  Bailey  vs.  Bailey, 
Wright,  Ch.  Ohio,  514;  Bay  vs.  Bay,  3  Green's  Ch.  414;  Ferguson  vs.  Fer- 
guson, 3  Sandf .  Ch.  307 ;  Van  Epps  vs.  Van  Fpps,  6  Barb.  N.  T.  320 ;  Mehle 
vs.  LapeyroUerie,  16  La.  An.  4;  Bast  vs.  Bast,  82  111.  584. 

{I)  Moore  vs.  Moore,  1  Green,  N.  J.  122.  276;  see  Anyelo  vs.  Angela,  81 
111.  251. 

{m)  Moulton  vs.  Moulton,  1  Shep.  Maine,  110. 

(/()    Banta  vs.  Banta,  3  Edw.  Ch.  295;  see  Jeiikijis  vs.  Jenldns,  86  111.  340. 

{o)  Mayer  vs.  Mayer,  6  C.  E.  Greene,  N.  J.  246;  Thomas  vs.  Thomas.  51 
111.  162;  Larrison  vs.  Larrison,  5  C.  E.  Greene,  N.  J.  100;  Hedden  vs.  Hed- 
den,  6  C.  E.  Greene,  N.  J.  61;  Thayer  vs.  Thayer,  101  ilnss.  Ill;  Lyon  vs. 
Ltjon,  02  Barb.  N.  Y.  138;  Blake  vs.  Blake,  70  III.  618 


BILLS   FOR   DIVORCE.  493 

Frame  of  Bill  for  Adultery,  etc. —  Form  of  Bill. 

Frame  of  hill  charging  adultery. — A  divorce  cainiot  be 
decreed  upon  a  bill  charging  adultery  generally,  without 
stating  either  time,  place  or  circumstances,  though  the  persons 
with  whom  it  is  committed  are  unknown,  [p)  And  it  is  held, 
that  if  the  bill  alleges  adultery  with  a  particular  person,  it  will 
not  be  sustained  by  proof  of  adultery  with  any  other  per- 
son, {q) 

The  name  of  the  person  with  whom  the  adultery  was  commit- 
ted should  be  given.  {7')  A  charge  of  adultery  with  a  certain 
woman  is  too  indefinite,  {s)  if  known ;  and  if  not  known,  it 
must  be  alleged  that  it  is  unknown.  The  time  and  place  of 
committing  the  act  should  also  be  stated  with  reasonable  cer- 
tainty, {t) 

A  charge  of  extreme  and  repeated  cruelty  and  a  charge  of 
adultery  may  be  joined  in  the  same  bill,  and  the  court  will 
decree  a  divorce  according  to  the  evidence  produced,  {u) 

No.  176.     Bill  hy  husband  for  a  divorce.^  charging  adultery. 

To  the  Honorable  ^ ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  your  orator  was  lawfully  joined  in  marriage 
with  C.  B.,  the  defendant  hereinafter  named ;  and  that  your 
orator  is  now  a  resident  of  said  county,  and  is  now,  and  has 

been  a  resident  of  this  state  for  more  than years  last  past ; 

that  your  orator  lived  and  cohabited  with  the  said  C.  B.  as  her 
husband  from  the  time  of  their  intermarriage  until,  etc.,  and  in 
all  respects  demeaned  himself  as  a  kind  and  indulgent  husband  ; 
that  on,  etc.,  becoming  acquainted  with  the  facts  hereinafter 
set  forth,  he  left  the  said  C.  B.,  and  has  refused  to  live  and 
cohabit  with  her  since  that  time. 

Your  orator  further  represents,  that  on,  etc.,  at,  etc.,  and  at 

(p)  Kane  vs.  Kane,  3  Edw.  Ch.  389. 
(?)    Washhurn  vs.  WasJiburn,  5  N.  H.  195. 

(r)  Bird  vs.  Bird,  Wright,  Ch.  98 ;  Bidiarda  vs.  Richards,  lb.  303 ;  Mor- 
rell  vs.  Morrell,  1  Barb.  318. 

(s)    Mansfield  vs.  Mansfield,  Wright,  Ch.  284. 
\t)    Morrell  vs.  Marrdl,  1  Barb.  N.  T.  318. 
(tt)   Young  vs.  Young,  4  Mass.  480. 


494  BILLS   FOR   DIVORCE. 

Form  of  Bills  Charging  Adultery,  etc. 

various  other  times  and  places,  since  the  said  marriage,  the  said 
C.  B.,  in  litter  disregard  and  in  violation  of  her  marriage  duty 
and  obligations,  committed  adultery  and  had  carnal  knowledge 
with  one  E.  F. ;  and  that  the  said  C.  B.  has  at  divers  other 
times  and  places  to  your  orator  unknown,  since  the  said  mar- 
riage, committed  adultery  with  divers  other  persons  to  your 
orator  unknown.     {Here  set  forth  any  other  act  according  to 

\    circuTnstances.) 

I        Forasmuch,  therefore,  as  your  orator  is  without  remedy  in  the 
premises,  except  in  a  court  of  equity ;  and  to  the  end  that  the 
said  C.  B.,  who  is  made  party  defendant  to  this  bill,  may  be 
required  to  make  full  and  direct  answer  to  the  same ;  and  that 
the  said  marriage  between  your  orator  and  the  defendant  may 
be  dissolved  and  declared  null  and  void,  by  the  decree  of  this 
court,  according  to  the  statute  in  such  case  made  and  provided  ;vy   j 
and  that  your  orator  may  have  such  other,  and  further  relief  in>      -», 
the  premises  as  equity  may  require  and  to  your  honor  shall  \ 
seem  meet.  \f] 

May  it  please  your  honor  to  grant  the  writ  of  summons  in     z?'' 
chancery,  directed  to  the  sheriif  of  the  said  county  of ,  com- 
manding him  that  he  summon  the  defendant  C.  B.  to  appear 

before  the  said  court,  on  the  first  day  of  the  next term 

thereof,  to  be  held  at  the  court  house  in ,  in  the  county  ot 

aforesaid,  then  and  there  to  answer  this  bill,  etc. 

iVb.  177.     Bill  for  divorce  hy  wife,  charging  adultery,  and 
jpraying  for  alim,ony  and  the  custody  of  children. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Your  oratrix,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,- that  she  is  an  actual  resident  of  said  county,  and  is  now, 
and  has  been  for  over  one  whole  year  last  past  a  resident  of  the 
State  of  Illinois ;  that  on,  etc.,  at,  etc.,  she  was  lawfully  married 
to  one  C.  B.,  the  defendant  hereinafter  named,  and  continued 
to  live  and  cohabit  with  him  as  his  wife,  until,  etc.,  when  she 
learned,  and  became  convinced,  of  his  infidelity  to  his  marriage 
vows  and  obligations  as  hereinafter  charged,  and  thereupon 
left  him,  and  has  refused  to  live  and  cohabit  with  him  as  his 
wife  ever  since. 

Tour  oratrix  further  represents,  that  she  has  ever  since  said 
marriage  demeaned  herself  to  the  said  C.  B.  as  a  feithful,  chaste, 
and  affectionate  wife;  and  as  tlie  issue  of  such  marriage  your 
oratrix  has  born  of  the  said  C.  B.  two  children,  viz.,  F.  B. 


BILLS   FOR   DIVORCE.  495 

Form  of  Bill  for  Divorce  for  Adultery,  etc. —  Alimony,  etc. 

and  G.  B.,  now  aged  three  and  five  years  respectively,  who  are 
both  living,  and  have  remained  under  the  care  and  control  of 

your  oratrix. 

Your  oratrix  further  represents,  that  the  said  C.  B.,  wholly 
regardless  of  his  marriage  duty,  obligations,  and  plighted  faith, 
has  for  a  considerable  time  past,  and  subsequently  to  the  said 
marriage,  to-wit,  from,  etc.,  given  himself  up  to  adulterous 
and  licentious  practices;  and  that  on,  etc.,  at,  etc.,  he,  the  said 
C.  B.,  committed  adultery  and  had  carnal  connection  with  one 
G.  H.  ;  and  has  at  divers  other  places  and  times,  since  said 
niairiage,  to  your  oratrix  unknown,  committed  adultery  with 
the  said  G.  H.,  and  with  divers  other  lewd  women,  whose 
names  are  also  to  your  oratrix  unknown.  {Here  set  forth  any 
other  act  of  adultery,  giving  names,  time,  plaice,  and  circum- 
staiices  as  near  as  j)ossihle.) 

Your  oratrix  furtlicr  represents,  that  the  said  C.  B,  is  a  man 
of  low,  vicious,  and  vulgar  habits,  and  is  addicted  to  the  use 
of  obscene  and  profane  language  towards  your  oratrix  and  their 
said  children,  in  the  presence  and  hearing  of  the  said  children ; 
and  is  a  person  wholly  unlit  to  be  intrusted  witli  the  care,  cus- 
tody, and  education  of  children. 

Your  oratrix  further  represents,  that  the  said  C.  B.  is  the 
owner  in  fee  simple  of  the  following  described  real  property, 
to-wit :     {Sere  describe  his  real  estate^  of  great  value,  to-wit, 

of  the  value  of dollars ;    and  is  the  owner  of  a  large 

amount  of  personal  property,  consisting  of,  etc.  {Here  describe 
it  and  set  forth  his  ■pecuniary  circximstances  and  calling 
fully').  That  your  oratrix  is  poor,  without  means  to  support 
herself  and  children,  and  to  prosecute  this  suit ;  and  that 
the  said  C.  B.  is  abundantly  able  to  sup]3l.y  all  the  necessities 
and  wants  of  your  oratrix  and  the  said  children,  but  wholly 
neglects  and  refuses  so  to  do ;  and  your  oratrix  is  now  com- 
pelled to  accept  assistance  from  her  relatives  and  friends  to  live 
and  subsist  from  day  to  day ;  and  that  the  said  children  and 
your  oratrix  are  but  poorly  su])plied  with  clothing  and  other 
comforts  of  life  suitable  to  her  and  their  condition  in  life. 

Yonr  oratrix  further  represents,  that  the  said  C.  B.  threat- 
ens, and  your  oratrix  fears  that  he  wdll  carry  his  threat  into 
execution,  to  sell  oif  all  his  real  and  personal  property,  .to  pre- 
vent your  oratrix  from  obtaining  alimony  therefrom  for  the 
support  of  herself  and  her  said  children  ;  and  that  the  said 
C.  B.  ought  to  be  restrained  by  the  injunction  of  this  honor- 
able court  from  selling,  assigning,  incumbering  or  otherwise 
disposing  of  the  said  property  until  the  hearing  of  this  cause, 
and  suitable  provisions  are  made  for  the  support  of  your 
oratrix  and  the  said  children. 


496  BILLS   FOR  DIVORCE. 

Willful  Desertion,  etc. 

Forasraucb,  therefore,  as  your  oratrix  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  B.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same^Y^hat 
your  oratrix  may  be  divorced  and  forever  freed  from  the  bonds  ^^ 
of  matrimony  now  existing  between  her  and  the  said  C.  B.jJljhat'^jn 
the  care,  custody  and  education  of  the  said  children  may  be  ^' 
awarded  to  your  oratrix  ;jihat  your  honor  will  decree  to  your 
oratrix  such  portions  of  t!ie  property  of  the  said  C.  B.,  or  such 
sums  of  money  to  be  paid  by  the  said  C.  B.  to  her,  as  your 
honor  may  deem  necessary  and  proper  for  the  maintenance 
of  your  oratrix  and  the  said  children ;  and  that  the  said  C.  B. 
may  be  required  to  pay  to  your  oratrix  a  sufficient  sum  of  mo- 
ney to  enable  her  to  employ  counsel  and  to  prosecute  this  suit, 
and  for  the  support  of  herself  and  the  said  children  during  the 
pendency  thereof;  and  that  the  said  C.  B.  may  be  restrained  by 
the  injunction  of  this  court  from  selling,  assigning,  incumbering 
or  otherwise  disposing  of  the  said  property  until  the  further 
order  of  this  honorable  court ;  and  that  your  oratrix  may  have 
such  other  and  further  relief  in  the  premises  as  equity  may 
require,  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sherin  of  the  said  county  of , 

commanding  him  that  he  summon  the  defendant  to  appear 

before  the  said  court  on  the  first  day  of  the  next term 

thereof,  to  be  held  at  the  court  house  in ,  in  the  county 

of aforesaid,  then  and  there  to  answer  this  bill,  etc. 

And  may  it  please  your  honor,  to  grant  unto  your  oratrix 
the  people's  writ  of  injunction,  to  be  directed  to  the  said  C.  B., 
restraining  him,  etc.,  from,  etc.,  {Here  set  forth  the  matter 
sought  to  he  enjoined,  as  ■^V^  the  above  prayer,)  until  the  further 
order  of  this  court. 

{Add  affidavit,  No.  129,  ante,  page  SJfS.) 


SECTION  VII. 
WILLFUL    DESERTION. 

The  1st  section  of  the  revision  of  the  statute,  as  we  have 
seen,  provides  that  if  either  party  "  has  willfully  deserted  or 
absented  himself  or  herself  from  the  husband  or  wife,  without 
any  reasonable  cause,  for  the  space  of  two  years,"  a  divorce 
may  be  granted  to  the  party  deserted  for  that  cause. 


BILLS   FOR  DIVORCE.  497 

Willful  Desertion  — Bill  for. 

Before  a  divorce  can  be  obtained  in  Illinois  on  the  ground 
of  desertion,  such  desertion  must  continue  for  the  full  space 
of  two  years,  without  reasonable  cause,  (v) 

And  a  desertion  for  the  period  of  two  years  by  the  husband, 
residing  in  this  state,  although  commenced  in  a  foreign  juris- 
diction, will  enable  a  wife  to  obtain  a  divorce,  though  she  may 
not  have  resided  in  the  state  for  one  year  prior  to  the  tiling  of 
the  bill,  (w) 

Desertion,  to  be  a  cause  for  divorce,  must  be  willful,  and  con- 
tinue for  the  full  period  of  two  years.  If  a  bill  is  prematurely 
filed,  the  defect  cannot  be  cured  by  filing  a  supplemental  bill 
after  the  two  years  have  elapsed.  A  hearing  can  only  be  had 
on  the  grounds  which  existed  when  the  suit  was  commenced, 
and  subsequent  grounds  cannot  be  incorporated  into  the  case 
after  the  commencement  of  the  proceedings.  («)  Two  periods 
of  desertion  cannot  be  added  together  to  make  up  the  time 
specified  in  the  statute,  [y) 

Separation  and  intention  to  abandon  must  concur  in  order 
to  constitute  the  ground  for  divorce.  But  they  need  not  be 
identical  in  their  commencement.  If  one  should  leave  the 
other  on  business,  and  afterwards  determine  not  to  return,  the 
desertion  would  commence  from  the  time  the  intention  was 
formed,  (s) 

The  term  "  willful  desertion,"  as  used  in  the  statute,  signifies 
an  intentional  desertion.  It  does  not  imply  malice  towards 
the  other  party,  (a) 

JH^o.  178.     Bill  for  divorce  for  willful  desertion. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 
Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 

(«)    Tliomas  vs.  Thomas,  51  111.  162 ;  see  Beavis  vs.  Beavis,  1  Scam.  242. 
(w)  Ashhavgh  vs.  Ashhaugh,  17  111.  476. 
(a;)    Emhree  vs.  Embree,  53  111.  394. 
iy)    23  Miss.  152. 

(z)    Pinkard  vs.  Pinkard,  14  Texas,  356 ;  Reed  vs.  Beed,  Wright,  Ch.  224 ; 
Phelan  vs.  Phelan,  12  Florida,  449;  Kennedy  vs.  Kennedy,  87  111.  250. 
(a    Benkert  vs.  Ben  kerf,  32  Cal.  467. 


498  BILLS   FOR   DIVORCE. 

Habitual  Drunkenness. 

honor,  that  he  is  an  actual  resident  of  the  said  county  of , 

and  is  now,  and  has  been  for years  last  past,  a  resident  of 

the  State  of  Illinois ;  that  on,  etc.,  at,  etc.,  he  was  lawfully 
married  to  one  C.  D.,  now  C.  B.,  the  defendant  hereinafter 
named,  and  from  the  time  of  the  said  marriage  until,  etc.,  he 
lived  and  cohabited  with  the  said  C.  B.  as  her  husband ;  and 
always  conducted  himself  towards  his  said  wife  as  a  true,  kind 
and  indulgent  husband,  and  provided  her  with  all  the  neces- 
saries and  comforts  of  life,  according  to  the  best  of  his  means 
and  their  situation  in  life. 

Your  orator  further  represents,  that  the  said  0.  B.,  wholly 
regardless  of  her  marriage  covenants  and  duty,  afterwards,  on, 
etc.,  willfully  deserted  and  absented  herself  from  your  orator, 
without  any  reasonable  cause,  for  the  space  of  two  years  and 
upwards ;  and  has  persisted  in  such  desertion,  and  yet  contin-  , 
ues  to  absent  herself  from  your  orator.  -n 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity  ;  and  to  the  end  that 
the  said  C.  B.,  who  is  made  a  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  and 
that  the  said  marriage  between  your  orator  and  the  said  C.  B. 
may  be  dissolved  and  de'clared  null  and  void  by  the  decree  of 
this  court,  according  to  the  statute  in  such  case  made  and  pro- 
vided ;  and  that  your  orator  may  have  such  other  and  further 
relief  in  the  premises  as  equity  may  require,  and  to  your  honor 
may  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  ^process  as  in  No.  17 J}., 
ante,  _2^«^e  Jt.89.) 


SECTION  VIII. 
HABITUAL    DRUNKENNESS 

Habitual  drunkenness,  for  the  space  of  two  years,  is  a  ground 
for  divorce  under  the  statute  of  Illinois. 

What  amounts  to  habitual  drukenness  is  generally  a  question 
of  law ;  and,  therefore,  on  the  hearing  of  the  cause,  it  is  not 
sufficient  that  the  witness  testify  in  general  terms  that  the  de- 
fendant is  an  habitual  drunkard,  but  the  witness  should  give 
the  particular  facts  and  circumstances,  so  that  the  court  may 
judge  of  their  sufficiency.  (5) 

(&)    Bishop  on  Mar.  &  Div.  §  532  ;  Batchelder  vs.  Batchelder,  14  N.  H.  380. 


BILLS   FOR  DIVORCE.  499 

Habitual  Drunkenness  —  Form  of  Bill  for. 

In  this  state,  where  the  defendant  appears  and  denies  the 
charges  in  the  bill,  the  trial  is  by  jury.  In  such  case,  the 
witness  should  state  facts  and  circumstances,  and  the  jury 
will  decide  from  these  whether  the  defendant  is  an  habitual 
drunkard  or  not.  It  would  be. improper  to  allow  a  witness  to 
give  his  opinion  on  the  subject. 

A  fixed  habit  of  drinking  to  excess,  to  such  a  degree  as  to 
disqualify  a  person  from  attending  to  his  business,  during  the 
principal  portion  of  the  time  usually  devoted  to  business,  is 
such  habitual  intemperance  as  is  made  a  ground  for  divorce,  (c) 

A  divorce  cannot  be  obtained  for  habitual  drunkenness,  if 
the  complainant  was  aware  of  this  before  marriage,  (d) 

JVo.  179.  Bill  for  divorce.,  charging  habitual  drunkenness, 
and  praying  for  custody  of  children,  alimony,  injunction, 
etc. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

Tour  oratrix,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 

honor,  that  she  is  an  actual  resident  of  the  said  county  of , 

and  is  now,  and  has  been  a  resident  of  the  State  of  Illinois  for 
over  one  year  last  past ;  that  on,  etc.,  at,  etc.,  she  was  lawfully 
married  to  one  C.  B.,  and  from  that  time  until,  etc.,  lived  and 
cohabited  with  him  as  his  wife,  and  during  all  that  time  faith- 
fully performed  all  her  duties  and  obligations  as  a  wife,  bearing 
with  her  husband's  faults  and  errors,  and  striving  to  make  their 
home  and  family  comfortable  and  happy. 

Tour  oratrix  further  represents,  that  the  said  C.  D.,  wholly 
regardless  of  his  obligations  as  a  husband,  a  few  years  after  the 
said  marriage,  commenced  the  excessive  use  of  intoxicating 
liquors,  and  for  more  than  two  years  last  past  has  been  guilty 
of  habitual  drunkenness  ;  that  he  has  constantly  been  on  sprees, 
and  remained  in  an  intoxicated  condition  almost  continually, 
and  has  been  wholly  unfit  to  attend  to  his  usual  occupation 
and  business  during  that  period ;  that  while  he  is  thus  intoxi- 
cated, he  is  very  quarrelsome  and  ill-treats  his  family,  using 
abusive   language  and   opprobrious   epithets,  rendering  your 

(c)  Mahone  vs.  Mdhone,  19  Cal.  637. 

(d)  Poritt  vs.  Poritt,  16  Mich.  140. 


500  BILLS   FOR  DIVORCE. 

Form  of  Bill  Charging  Habitual  Drunkenness. 

oratrix's  condition  intolerable,  and  her  life  burdensome;  in 
consequence  of  which  she  was  compelled  to  withdraw  with  her 
children  from  their  home. 

Your  oratrix  further  represents,  that  as  the  issue  of  such 
marriage  she  has  had   by  the  said  C.  B.  three  children,  viz., 

E.  B.,  now  aged years  ;  F.  B.,  now  aged years  ;  and 

G.  B.,  now  aged years ;  and  that  in  consequence  of  his 

drunken  habits  and  abusive  language  the  said  C.  B.  is  a  person 
wholly  unfit  to  have  the  care,  custody  and  education  of  said 
children. 

Your  oratrix  further  represents,  that  the  said  C.  B.  is  the  owner 
in  fee  of  the  following  described  real  property,  to  wit :  {Here 
descrihe  the  real  estate^  of  great  value,  to  wit,  of  the  value  ol 

about dollars ;  and  is  the  owner  of  the  following  described 

personal  property  and  effects,  to  wit :  {Here  describe^)  that 
your  oratrix  is  without  means  of  subsistence,  except  as  she  is 
able  to  earn  the  same  by  her  own  labor;  that  the  said  C.  B.  is 
able  to  support  your  oratrix  and  their  said  cliildren  if  he  was 
disposed  to  do  so. 

Your  oratrix  further  represents,  that  the  said  C.  B.  has  given 
out  his  intention,  and  threatens,  to  sell  and  dispose  of  all  his 
property  as  aforesaid,  and  to  leave  your  oratrix  and  the  said 
children  without  any  means  of  support ;  and  your  oratrix  has 
good  reasons  to  fear,  and  does  fear,  that  he  will  carry  his  said 
threats  and  intentions  into  execution  unless  he  is  restrained  by 
the  injunction  of  this  honorable  court. 

Forasmuch  therefore,  as  your  oratrix  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  B.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  that 
your  oratrix  may  be  divorced  and  forever  freed  from  tlie  bonds 
of  matrimony  now  existing  between  her  and  the  said  C.  B. ; 
that  the  care,  custody  and  education  of  the  said  children  may 
be  awarded  to  your  oratrix ;  that  your  honor  will  decree  to 
your  oratrix  such  portions  of  the  property  of  the  said  C.  B., 
or  such  sums  of  money  to  be  paid  by  the  said  C.  B.  to  her,  as 
your  honor  may  deem  necessary  and  proper  for  the  mainte- 
nance of  your  oratrix  and  the  said  children ;  and  that  the  said 
C.  B.  may  be  required  to  pay  to  your  oratrix  a  sufficient  sum 
of  money  to  enable  her  to  employ  counsel,  and  to  prosecute 
this  suit,  and  for  her  support,  and  that  of  said  children,  during 
the  pendency  thereof;  and  that  the  said  C.  B.  may  be  re- 
strained by  the  order  and  injunction  of  this  honorable  court, 
from  selling,  assigning,  encumbering  or  otherwise  disposing 
of  the  said  property,  until  the  further  order  of  this  honorable 


BILLS   FOli   DIVOECE.  501 


Attempting  Life  of  the  Other  —  Form  of  Bill  for. 

court ;  and  that  your  oratrix  may  have  such  other  and  further 
relief  in  the  premises  as  equity  may  require  and  to  your  lionor 
sliall  seem  meet. 

May  it  please  your  honor,  etc.  {Praying  process  and  for 
mj'unction,  and  adding  ajjidavit  for  injunction,  as  in  No. 
177,  ante,  j;a^(?  Ji^Jf-.) 


SECTION   IX. 

ATTEMPTHSTG    THE    LIFE    OF    THE    OTHER. 

The  new  statute  of  Illinois  in  relation  to  divorce  provides  for 
a  divorce  where  a  husband  or  vrife  has  attempted  the  life  of  the 
other,  by  poison  or  other  means,  showing  malice.  This  is  an 
entirely  new  provision  of  the  statute. 

No.  180.     Bill  for  divorce,  for  atterrvpting  the  life  of  the 
complainant. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 

honor,  that  he  is  an  actual  resident  of  the  said  county  of , 

and  is,  and  has  been  a  resident  of  the  State  of  Illinois  for 

years  last  past ;  that  on,  etc.,  at,  etc.,  he  was  lawfully  married 
to  one  C.  D.,  now  C.  B.,  the  defendant  hereinafter  named  ;  and 
from  the  date  of  the  said  marriage  until,  etc.,  he  lived  and 
cohabited  with  the  said  C.  B.  as  her  husband ;  and  always 
conducted  himself  towards  her  as  a  true,  kind  and  indulgent 
husband. 

Your  orator  further  represents,  that  the  said  C.  B.,  wholly 
regardless  of  her  marriage  covenant  and  duties,  on,  etc.,  at,  etc., 
did  M'illfully  and  maliciously  attempt  .the  life  of  your  orator  by 
means  of  a  certain  poison,  to  wit :  two  drachms  of  arsenic,  with 
the  intent,  in  so  doing,  willfully  and  maliciously  to  take  the 
life  of  your  orator. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  B.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  and 
that  the  said  marriage  between  your  orator  and  the  said  C.  B. 
may  be  dissolved  and  declared  null  and  void,  by  the  decree  of 


502  BILLS   FOE   DIVOECE. 


Extreme  and  Repeated  Cruelty. 


this  court,  according  to  the  statute  in  such  case  made  and  pro- 
vided ;  and  that  your  orator  may  have  such  other  and  further 
relief  in  the  premises  as  equity  may  require,  and  to  your  honor 
may  teem  meet. 

May  it  please  your  honor,  etc.  [Pray process  as  in  lio.  17 li.^ 
ante,  jpage  JiB9.) 

SECTION  X. 

EXTREME  AND  REPEATED  CKUELTT. 

If  a  husband  or  wife  has  been  guilty  of  extreme  and  repeated 
cruelty  towards  the  other,  a  divorce  may  be  obtained  under 
the  statute  for  that  cause. 

The  cruelty  must  consist  in  physical  violence,  and  not  in 
angry  or  abusive  epithets,  or  even  profane  language,  and  it  must 
be  shown  to  have  been  repeated,  {e)  Austerity  of  temper,  sal- 
lies of  passion,  or  abusive  language,  do  not  constitute  such 
extreme  and  repeated  cruelty,  within  the  statute,  as  to  author- 
ize a  decree  of  divorce.  (/" ) 

A  wife  is  not  entitled  to  a  divorce  on  the  ground  of  violence, 
if  such  ill-treatment  has  been  drawn  upon  her  by  her  own  mis- 
conduct and  provocation,  even  though  such  violence  should 
proceed  to  blows,  [g)  But  where  a  blow  is  given  in  a  manner 
to  endanger  life  or  cause  a  serious  bodily  injury,  unless  given 
in  strict  defense  of  life  and  limb,  no  decree  of  provocation  can 
excuse  the  act.  {h) 

"Where  the  husband  is  the  complainant,  it  is  not  sufficient  to 

(e)  Embree  vs.  Emhree,  53  111.  394 ;  Vignos  vs.  Vignos,  15  111.  186  ;  Shaw 
vs.  Shaw,  17  Conn.  189 ;  Pedbody  vs.  Pedbody,  104  Mass.  195  ;  Moyler  vs. 
Moyler,  11  Ala.  620  ;  Hughes  vs.  Hughes,  19  Ala.  307  ;  Bailey  vs.  Bailey,  97 
Mass.  373 ;  Odom  vs.  Odom,  36  Geo.  286. 

(/)  TurUtt  vs.  TurUtt,  21  111.  438 ;  Sliell  vs.  Shell,  2  Sneed,  Tenn.  716 ; 
Ford  vs.  Ford,  104  Mass.  198 ;  Hughes  vs.  Hughes,  44  Ala.  698  ;  Conesey  vs. 
Conesey,  60  111.  188. 

(g)  Von  Olahn  vs.  Von  Olahn,  46  111.  134 ;  Knight  vs.  Knight,  31  Iowa, 
451 ;  Fellows  vs.  Fellows,  8  N.  H.  307 ;  Johnson  vs.  Johnson,  14  Cal.  459 ; 
David  vs.  David,  27  Ala.  222 ;  Skinner  vs.  Skinner,  5  Wis.  449  ;  Trowbridge 
vs.  C'arlin,  12  La.  An.  882 ;  Howe  vs.  Howe,  4  Nev.  395. 

(h)  Von  Glahn  vs.  Von  Olahn,  46  111.  134  ;  EidenmuUer  vs.  EidenmuUer, 
87  Cal.  364. 


BILLS   FOR   DIVORCE.  503 

Extreme  and  Repeated  Cruelty  —  Bill  for. 

show  slight  acts  of  violence  on  the  part  of  the  wife  towards 
him.  (i) 

It  is  not  required,  under  the  statute  of  Illinois,  that  a  party 
should  endure  "extreme  and  repeated  cruelty ''  for  two  years, 
before  applying  for  a  divorce  for  that  cause,  (j) 

Where  extreme  cruelty  is  alleged  as  a  cause  of  divorce,  tliere 
should  be  a  specification  of  the  acts  of  cruelty  complained 
of.  (7.) 

Although  the  specific  acts  of  cruelty  must  be  set  out  in 
the  bill,  yet  the  evidence  is  not  necessarily  limited  to  the 
particular  facts  charged.  Thus,  acts  of  personal  violence, 
when  intrinsically  and  separately  considered,  may  not  justify  a 
divorce ;  yet  when  attended  by  habitual  brutal  behavior,  so  as 
to  be  a  constant  outrage  upon  the  sense  of  decency  and  pro- 
priety of  the  party  to  be  affected  by  them,  a  case  of  extreme 
cruelty  within  the  meaning  of  the  statute  is  established,  (l) 

]\^o.  181.     Bill  for  divorce  on  the  ground  of  extreme  and 
repeated  cruelty. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  v our 
honor,  that  he  is  an  actual  resident  of  the  county  of afore- 
said, and  is,  and  has  been,  a  resident  of  che  State  of  Illinois 

for years  last  past ;  that  on,  etc.,  at,  etc.,  he  was  lawfully 

married  to  one  C.  D.,  now  C.  B.,  with  whom  he  resided  until, 
etc.,  when  he  was  compelled  to  leave  and  cease  living  with  her 
in  consequence  of  the  ill-treatment  hereinafter  mentioned  ;  that 
during  the  time  he  so  lived  with  the  said  C.  B.  he  always  con- 
ducted himself  towards  her  with  kindness,  and  as  a  true  and 
indulgent  husband,  supplying  all  her  wants  and  necessities, 
according  to  the  best  of  his  means  and  ability,  and  suitable  to 
his  and  her  condition  in  life. 

(i)  Birkhy  va.  Birkhy,  15  111.  120  ;  De  La  Hay  vs.  De  La  Hay,  21  111.  252  y 
Bee  Lynch  vs.  Lynch,  33  Md.  328. 

(j)    Harmon  vs.  Harmon,  IG  111.  85 ;  Conesey  vs.  Conesey,  60  111.  188. 

(A;)  Fellows  vs.  Fellows.  8  N.  H.  160 ;  Hill  vs.  Hill,  10  Ala.  527  ;  Wright  vs. 
Wright,  3  Texas,  168  ;  Byrne  vs.  Byrne,  lb.  336. 

(0  Brkjgs  vs.  Briggs.  20  Mich.  84;  see  Berdell  vs.  Berdell,  80  111.  604; 
Farnham  vs.  Farnham,  73  111.  497. 


504  BILLS   FOR  DIVOECB. 

Form  of  Bill  on  tlie  Ground  of  Extreme  and  Repeated  Cruelty. 

Your  orator  further  represents,  that  the  said  C.  D.,  not 
regarding  her  marriage  relations  and  duties,  has,  since  the 
said  intermarriage,  been  guilty  of  extreme  and  repeated  cruelty 
towards  your  orator,  in  this,  that  she  is  a  woman  of  great 

austerity  of  temper,  and  very  frequently,  during  the  past 

years,  indulged  in  violent  sallies  of  passion,  and  used  towards 
your  orator  very  obscene  and  abusive  language,  without  any 
provocation  whatever,  and  frequently  refused  to  prepare  your 
orator's  meals,  and  perform  such  other  household  duties  as  it 
was  incumbent  upon  her  to  perform ;  and,  on  numerous  occa- 
sions during  the  time  mentioned,  has  used  personal  violence 
towards  your  orator,  which  he  did  not  feel  disposed  to  resent, 
or  even  defend  himself,  on  account  of  her  sex ;  and  particu- 
larly your  orator  charges,  that  on  or  about,  etc.,  at,  etc.,  the 
said  C.  B.,  without  any  provocation  whatever,  struck  your 
orator  a  violent  blow  over  the  head  with  a  club  ;  and  again,  on 
or  about,  etc.,  the  said  C.  B.  again  attacked  your  orator  in 
their  house,  and  severely  beat  and  bruised  him  with  a  chair, 
and  broke  the  chair  in  pieces ;  and  tliat  on  or  about,  etc.  {Set 
forth  each  act  of  violence  according  to  the  facts.) 

Inasmuch,  thei-efore,  as  your  orator  is  without  remedy  in  the 
premises,  except  in  a  court  of  equity ;  and  to  the  end  that  the 
said  C.  B-.,  who  is  made  party  defendant  to  this  bill,  may  be 
required  to  make  full  and  direct  answer  to  the  same ;  and  that 
the  said  marriage  between  your  orator  and  the  defendant  may 
be  dissolved  and  declared  null  and  void  by  the  decree  of  this 
court,  according  to  the  statute  in  such  case  made  and  provided ; 
and  that  your  orator  may  have  such  other  and  further  relief  in 
the  premises,  as  equity  may  require  and  to  your  honor  shall 
seem  meet. 

May  it  please  your  honor,  etc.  {Pray  process  as  in  No. 
176,  ante,  page  Ji93.) 

JVo.  182.     Bill  for  divorce,  charging  extreme  and  repeated 
cruelty,  am,d  praying  for  an  injunction,  etc. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Tour  oratrix,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 

honor,  that  she  is  an  actual  resident  of  the  county  of afore- 

fiaid,  and  has  been  for  more  than years  last  past  a  resident 

of  the  State  of  Illinois;  that  on,  etc.,  at,  etc.,  she  was  lawfully 
married  to  one  C.  B.,  the  defendant  hereinafter  named,  and  has 
had  by  him  one  child,  viz.,  E,  B.,  now  aged  about years ; 


BILLS   FOR   DIVORCE.  505 

Form  of  Bill  on  the  Ground  of  Extreme  and  Repeated  Cruelty. 

that  since  her  intermarriage  with  the  said  C.  B.  she  has  always 
behaved  herself  towards  him  as  a  chaste,  dutiful  and  affection- 
ate wife. 

Your  oratrix  furtlier  represents,  that  the  said  C.  B.,  wholly 
disregarding  his  marriage  vows  and  obligations  towards  yonr 
oratrix,  has  ever  since  said  marriage  been  guilty  of  extreme 
and  repeated  cruelty  towards  your  oratrix  ;  that  is  to  say,  that 
the  said  G.  B.  on  divers  days  and  times  since  said  marriage, 
has  beaten,  struck,  kicked  and  choked  her,  and  has  neglected  to 
furnish  her  and  her  said  child  witli  proper  and  necessary  food  and 
clothing,  and  particularly  that  on,  etc.,  at  their  house,  the  said 
C.  B.  struck  your  oratrix  a  violent  blow  in  her  face  with  his 
fist,  knocking  lier  down,  and  otherwise  greatly  injuring  your 
oratrix  ;  and  that  afterwards,  on,  etc.,  the  said  0.  B.  again 
attacked  your  oratrix,  in  their  said  house,  kicked,  choked  and 
forced  her  out  of  said  house ;  and  again  on,  etc.,  he  struck 
and  kicked  your  oratrix  in  a  violent  manner,  and  otherwise  ill 
treated  her ;  and,  on,  etc.  {Insert  each  act  of  violence  accord- 
ing to  the  facts  /)  and  on  each  of  said  occasions,  and  on  nnmej'ous 
other  occasions  has  used  towards  your  oratrix  and  her  said 
child,  the  most  obscene,  profane  and  opprobrious  language, 
rendering  her  life  miserable. 

Your  oratrix  further  represents,  tliat  since  she  left  the  said 
C.  B.  he  has  continued  to  annoy  and  abuse  her ;  and  threatens 
to  take  the  said  child  from  your  oratrix  by  force,  and  to  kill 
your  oratrix  if  she  refuses  to  let  him  take  the  said  child  from  her ; 
and  your  oratrix  fears  and  believes  that  the  said  C.  B.  will  carry 
his  threats  into  execution,  unless  restrained  by  the  injunction 
of  this  honorable  court. 

Your  oratrix  further  represents,  that  the  said  C.  B.  is  pos- 
sessed of  the  household  furniture  and  property  used  by  your 
oratrix  and  him  in  keeping  house,  but  now  threatens  to  sell 
and  dispose  of  the  same  to  prevent  your  oratrix  from  obtaining 
possession  thereof;  and  your  oratrix  fears  and  believes  he  will 
carry  said  threat  into  execution,  unless  restrained  by  the  injunc- 
tion of  this  honorable  court. 

Forasmuch,  therefore,  as  your  oratrix  is  without  remed}^  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  B.,  who  is  made  party  defendant  to  this  1)111,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  that 
your  oratrix  may  be  divorced  and  forever  freed  from  the  bonds 
of  matrimony  now  existing  between  your  oratrix  and  the  said 
C.  B. ;  that  the  care,  custody  and  education  of  the  said  child 
may  be  awarded  to  your  oratrix;  that  your  honor  will  decree 
to  your  oratrix  the  household  furniture  and  property  of  the 


506  BILLS  FOR  DIVORCE. 

Conviction  of  Crime,  etc. 

said  C.  B.,  and  such  sums  of  money  to  be  paid  by  the  said  C.  B. 
to  her  as  your  honor  may  deem  necessary  and  proper  for  the 
maintenance  of  your  oratrix  and  the  said  child ;  and  that  the 
said  C.  B.  may  be  required  to  pay  to  your  oratrix  a  sufficient 
sum  of  money  to  enable  her  to  employ  counsel  and  to  carry  on 
this  suit,  and  for  the  support  of  herself  and  said  child  during  the 
pendency  thereof;  and  that  the  said  0.  B.  may  be  restrained 
by  the  order  and  injunction  of  this  honorable  court,  from 
selling,  assigning  or  otherwise  disposing  of  the  said  household 
furniture  or  property,  or  fi'om  in  any  manner  interfering  with 
your  oratrix  or  the  said  child' until  the  further  order  of  this 
court ;  and  that  your  oratrix  may  have  such  other  and  further 
relief  in  the  premises  as  equity  may  require  and  to  your  honor 
shall  seem  meet. 

May  it  please  your  honor,  etc.    {Praying  process  and  for  an 
injunction,  and  adding  affidavit  as  in  No.  177,  ante,  page  JfiJf.^ 


SECTION  XL 
CONVICTION    OF    CKIME,  ETC. 

Where  either  party  has  been  convicted  of  felony  or  other 
infamous  crime,  the  statute  of  Illinois  authorizes  the  injured 
party  to  obtain  a  divorce  on  that  ground. 

It  is  no  ground  for  a  divorce,  within  the  statute,  that  a  party 
has  committed  a  larceny,  where  no  conviction  has  been  had. 
The  statute  declares,  that,  to  be  a  cause  of  divorce,  the  party 
must  be  convicted  of  felony,  or  other  infamous  crime.  But  a 
court  has  no  authority  to  convict  a  defendant  of  a  felony  or 
infamous  crime  in  a  suit  for  a  divorce,  and  then  make  such 
conviction  the  basis  of  a  decree  of  divorce,  (m) 

It  is  said  that  conviction  and  imprisonment  in  another  juris- 
diction is  not  a  cause  of  divorce  in  New  Hampshire,  {n) 

(m)  Thomas  vs.  Thomas,  51  111.  163;  see  Harmon  vs.  Harmon,  16  111.  85  ; 
TJtsler  vs.  TltsUr,  Wright,  Ch.  627. 

(«,)  Martin  vs.  Martin,  47  N.  H.  52;  see  Sherman  vs.  Sherm/in,  18  Texas, 
531. 


BILLS  FOR  DIVORCE.  507 

Form  of  Bill  Charging  Conviction  of  Crime. 

No.  183.  Bill  for  a  dworce,  charging  a  conviction  of  a  felony 
etc.j  jproAjing  to  he  allowed  to  resume  maiden  name. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

Your  oratrix,  A.  B.,  of,  etc.,  respectfully  re])resents  unto  your 

honor,  that  she  is  an  actual  resident  of  the  said  county  of , 

and  is  now,  and  has  been  for years,  a  resident  of  the  State 

of  Illinois ;  that  your  oratrix'  maiden  name  was  A  .M.,  and 
she  is  the  daughter  of  L.  M.,  of,  etc. ;  that  on,  etc.,  at,  etc.,  she 
was  lawfully  married  to  one  C.  B.,  of,  etc.,  and  from  that  time 
until,  etc.,  she  lived  and  cohabited  with  him  as  his  wife,  and 
always  conducted  herself  towards  him  as  a  true,  faithful  and 
affectionate  wife. 

Your  oratrix  further  represents,  that  on,  etc.,  at,  etc.,  at  a 

term  of  the court  of  the  county  of ,  in  said  state,  begun 

and  held  in  said  county,  on,  etc.,  before  the  Honorable , 

judge  thereof,  presiding,  the  said  C.  B.  was  duly  convicted  of 
the  crime  oi  larceny,  and  was  then  and  there,  by  the  judgment 
of  that  court,  sentenced  to  coniinement  in  the  penitentiary  of 

said  state  for  the  term  of years,  at  hard  labor,  which  said 

judgment  still  remains  in  full  force  and  effect,  not  reversed, 
annulled  or  vacated,  as  by  the  records  and  proceedings  in  said 
court  now  remaining,  reference  thereto  being  had,  will  more 
fully  appear. 

Forasmuch,  therefore,  as  j-our  oratrix  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity  ;  and  to  the  end  that 
the  said  C.  B.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  and 
that  the  said  marriage  between  your  oratrix  and  the  said  C.  B. 
may  be  dissolved  and  declared  null  and  void  by  the  decree  of 
this  court,  according  to  the  statute  in  such  case  made  and  pro- 
vided ;  and  that  your  oratrix  may  be  allowed  to  resume  her 
maiden  name  of  A.  M.,  as  before  marriage ;  and  that  your 
oratrix  may  have  such  other  and  further  relief  in  the  premises 
as  equity  may  require  and  to  your  honor  may  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  process  as  in  No. 
17 Jf.,  ante,  page  JfS9.) 


608  BILLS   FOR  DIVORCE. 


Defenses  to  —  Condonation. 


SECTION  XII. 

DEFENSES    TO. 

The  defendant  may  appear,  except,  demur,  plead  or  answer 
the  bill  of  complaint  as  in  other  eases  in  chancery.  The 
statute  in  regard  to  divorces  provides  tliat 

(§  6.)  "  The  process,  practice  and  proceedings  under  this  act 
shall  be  the  same  as  in  other  cases  in  chancery,  except  as  herein 
otherwise  provided,  and  except  that  the  answer  of  the  defend- 
ant need  not  be  on  oath," 

The  statute  does  not  require  an  answer  to  be  sworn  to,  but 
provides  that  it  need  not,  and  is  different  from  the  general 
chancery  practice  in  that  respect.  The  statute  having  dis- 
pensed with  such  oath,  the  defendant  acquires  no  advantage 
by  swearing  to  his  answer  in  such  a  case.  Such  a  sworn 
answer  has  no  more  effect  than  the  bill,  and  is  not  evi- 
dence, (c)  But  a  verified  answer  may  be  read  as  an  affidavit 
on  a  motion  for  alimony,  pendente  lite,  (p) 

If  the  complainant  is  not  a  resident  of  the  county  where  the 
suit  is  brought,  and  that  fact  does  not  appear  upon  the  face  of 
the  bill,  the  objection  can  only  be  raised  by  a  plea.  If  a  de- 
fendant proceeds  to  answer  the  bill,  the  objection  of  want  of 
jurisdiction  is  waived,  (q) 

Nothing  in  an  answer  will  be  considered  as  impertinent 
which  tends  to  show  the  conduct  of  either  party  against  the_ 
other.  In  addition  to  a  denial  of  the  treatment  alleged  in  the 
bill,  the  defendant  may  allege,  in  his  answer,  conduct  on  the 
part  of  the  complainant  calculated  to  irritate  and  provoke  him, 
and  to  excite  his  jealousy  or  alienate  his  affections  from  her.  (;') 

Condonation. —  If  the  injured  party  cohabits  with  the  other 
subsequent  to  an  adulterous  offense,  having  the  ability  to  prove 


(o)    Conesey  vs.  Conesey,  60  111.  180. 

{p)  Anthony  vs.  Anthony,  3  Stockt.  N.  J.  70. 

(g)    Parker  vs.  Parker,  61  111.  369. 

(r)    Hopper  vs.  Hopper,  11  Paige,  Ch.  46. 


BILLS   FOR  DIVORCE.  509 

Defenses  to  —  Condonation. 

the  offense,  it  will  be  a  bar  to  a  proceeding  for  divorce,  (s)  But 
the  effect  of  cohabitation,  as  condonation  of  adultery,  is  less 
binding  upon  the  wife  than  upon  the  husband,  (t)  And  con- 
donation is  always  accompanied  with  the  implied  condition 
that  the  injury  shall  not  be  repeated.  Thus,  cruelty  of  an 
aggravated  character  may  revive  the  offense  of  adultery  im- 
pliedly condoned,  and  when  properly  brought  to  the  knowl- 
edge of  the  court,  during  the  pendency  of  a  suit  for  a  divorce 
for  adultery,  will  authorize  a  decree  for  a  divorce,  (u) 

Condonation  of  the  adultery  is  a  conditional  forgiveness  of 
the  offense,  and  a  repetition  of  the  adultery  revives  the 
offense,  (v) 

Cohabitation,  after  extreme  and  repeated  cruelty,  is  not  a 
bar  to  divorce  for  that  cause,  although  it  is  so  in  cases  of 
adultery.  The  distinction  between  the  cases  seems  to  be 
founded  on  a  just  conception  of  the  conjugal  relations,  (w) 
Although  it  has  been  held,  that  where  a  wife  continued  to  live 
with  her  husband  after  acts  of  violence,  it  is  proof  that  she 
did  not  consider  herself  in  danger,  {x) 

Condonation  on  the  part  of  the  wife  is  not  pressed  with  the 
same  rigor  as  condonation  on  the  part  of  the  husband ;  yet 
where  the  wife  has  forgiven  the  husband  for  injuries  inflicted 


(s)  Davis  vs.  Davis,  19  111.  334  ;  Williamson  vs.Williamson,  1  Johns.  CL. 
488  ;  Johnson  vs.  Johnson,  14  Wend.  687  ;  5.  C.  4  Paige,  Ch.  460 ;  S.  C.  1 
Edw.  Ch.  439 ;  Phillips  vs.  Phillips,  4  Blackf.  131  ;  Hall  vs.  Hall,  4  N.  H. 
463 ;  Dettiher  vs.  Delliber,  9  Conn.  233  ;  Anon.  lb.  147 ;  JSforth  vs.  Ilorth,  5 
Mass.  320  ;  Quincy  vs.  Quincy,  10  N.  H.  272  ;  Master  vs.  Master,  15  N.  II.  159  ; 
Buckholts  vs.  Buckholts,  24  Geo.  238 ;  Armstrong  vs.  Armstrong,  3  George, 
Miss.  279 ;  Twyman  vs.  Twyman,  27  Mo.  383  ;  Marsh  vs.  Marsh,  2  Beasley, 
N.  J.  281 ;  TrvmbuU  vs.  Trumbull,  23  Ark.  615. 

(t)  Johnson  vs.  Johnson,  1  Edw.  Ch.  439  ;  Armstrong  vs.  Armstrong, 
8  George,  Miss.  279  ;  Eollister  vs.  Hollister,  6  Barr,  449. 

iu)  Davis  vs.  Davis,  19  111.  334 ;  Odom  vs.  Odom,  36  Geo.  286  ;  Armstrong 
vs.  Armstrong,  27  Ind.  186;  Farnham  vs.  Farnham,  73  111.  497. 

(r)  Smith  vs.  Smith,  4  Paige,  Ch.  432;  Johnson  vs.  Johnson,  lb.  460; 
Collier  vs.  Collier,  1  Dev.  352. 

{iv)  Hollister  V?,  Hollister,  6  Barr,  449;  Tr/^/s^jeZZ  vs.TT/iis/jeZZ,  4Barb.  217; 
Reese  vs.  Reese,  23  Ala.  785;  Nogees  vs.  Nogees,  7  Texas,  538. 

{x)  Griffin  vs.  Griffin,  8  B.  Monr.  120;  see  Phillips  vs.  Phillips,  1  Brad- 
well,  App.  Ct.  R.  245. 


510  BILLS   FOR   DIVORCE. 

Defenses  to  —  Recrimination  —  Injunction. 

upon  her,  and  the  parties  have  become  reconciled,  courts  are 
averse  to  listen  to  the  old  grounds  of  complaint,  {y) 

JRecri'niinatio7i. — A  husband  cannot  resist  a  divorce  for  adul- 
tery by  setting  up  desertion  by  the  wife  ;  (2)  nor  can  a  wife  set 
up  cruelty  of  the  husband  as  a  defense  to  a  bill  filed  against 
her  for  adultery,  {a) 

Where  a  hnsband  and  wife  each  file  a  bill  for  divorce,  the 
one  for  cruelty  and  the  other  for  adultery,  and  both  the  charges 
are  sustained,  each  will  be  considered  a  bar  to  the  other,  and  a 
divorce  will  be  denied  to  both.  (J) 

If  the  party  seeking  a  divorce  on  the  ground  of  adultery  has 
been  guilty  of  the  same  ofiense,  either  before  or  after  the 
offense  committed  by  the  other,  it  is  a  conclusive  bar  to  the 
suit,  (c)  But  proof  of  adultery  on  the  part  of  the  complainant 
is  no  bar  to  a  divorce  grounded  on  the  subsequent  adultery  of 
the  defendant,  if  there  has  been  an  intervening  condonation  of 
the  complainant's  offense,  {d) 


SECTION  XIII. 
INJUNCTIONS   IN. 

The  statute  provides  that 

(§  12).  "  The  court  may  prohibit  the  husband  from  inter- 
posing any  restraint  on  the  personal  liberty  of  the  wife  during 
the  pendency  of  the  suit." 

{y)  Dames  vs.  Dames,  55  Barb.  130 ;  Bowie  vs.  Borne,  3  Md.  Ch.  Decis.  51  ; 
Sterling  vs.  Sterling,  12  Geo.  201. 

(2)  4  Porter,  Ind.  R.  467 ;  Wood  vs.  Wood,  5  Ired.  Eq.  674 ;  but  see  Allen 
vs.  Allen,  4  Allen,  Mass.  39. 

(a)    Betz  vs.  Betz,  2  Rob.  N.  Y.  694  ;  Monk  vs.  Monk,  7  Rob.  N.  Y.  153. 

(6)    Bibet  vs.  Bibet,  39  Ala.  348. 

(c)  Smith  vs.  Smith,  4  Paige,  Ch.  432 ;  Pastoiet  vs.  Pastoiet,  6  Mass.  276 ; 
Ghristianherry  vs.  Christianherry ,  3  Blaokl'.  203  ;  Mattox  vs.  Mattox,  2  Ham. 
O.  233 ;  Holmes  vs.  Holmes,  Walk.  Miss.  474 ;  Burdell  vs.  BurdeU,  2  Barb. 
473  ;  Les&uer  vs.  Leseuer,  31  Barb.  330 ;  Clapp  vs.  Clapp,  97  Mass.  531. 

(d)  Master  vs.  Master,  15  N.  H.  159. 


BILLS  FOR  DIVORCE.  511 

Injunction  —  Custody  of  Children,  etc. 

Custody  of  children^  pendente  lite. —  (§  13.)  "The  court 
may,  on  tlie  application  of  either  party,  make  such  order  con- 
cerning the  custody  and  care  of  the  minor  children  of  the 
parties  during  the  pendency  of  the  suit,  as  may  be  deemed 
expedient,  and  for  the  henetit  of  the  children." 

When  ^rojjer. — It  may  be  stated,  as  a  general  rule,  that 
pending  proceedings  for  a  divorce,  upon  a  proper  case  shown, 
the  husband  may  be  restrained  from  interfering  with  the  cus- 
tody of  the  children,  or  of  property  in  the  possession  of  the 
wife,  (e)  So  a  husband  will  be  enjoined  from  disposing  of  his 
property  in  such  manner  as  to  prevent  the  wife  from  obtaining 
alimony  or  a  separate  maintenance,  on  a  bill  pending  for  that 
purpose.  (/) 

Mere  apprehension  of  abandonment  by  the  husband,  and  a 
failure  to  support  the  wife,  is  not  sufficient  cause  to  warrant  the 
interposition  of  equity  in  restraining  him  from  disposing  of  his 
property,  since  injunctions  are  not  usually  allowed  upon  mere 
apprehensions  of  future  wrong,  {g)  And  where  a  preliminary 
injunction  has  been  allowed  in  such  a  case,  it  will  be  dissolved 
on  the  coming  in  of  the  answer  denying  any  intention  on  the 
part  of  the  husband  to  abandon  the  wife.  (7i) 

An  injunction  may  be  obtained  by  the  wife  to  restrain  the 
husband  from  encumbering  as  well  as  from  selling  his  pro- 
perty, {i)  But  the  wife  will  not  be  allowed  in  such  case  to 
restrain  the  husband  from  using  his  property  for  the  support 
of  himself  and  his  children,  nor  will  he  be  enjoined  from  using 
the  tools  and  implements  of  his  trade,  or  from  carrying  on  his 
ordinary  business,  {j) 

{e)    Wilson  vs.  Wilson,  Wright,  0.  Ch.  129  ;  Edwards  vs.  Edwards,  lb.  308. 

(/)  Questel  vs.  Qtiestel,  Wright,  Ch.  492 ;  Johnston  vs.  JoTinslon,  lb.  454 ; 
Bascomb  vs.  Bascomb,  lb.  632 ;  Riclcetts  vs.  RicketU,  4  Gill,  105 ;  High  on 
Inj.  §843. 

ig)    AnsJiutz  vs.  Ansliutz,  1  C.  E.  Green,  N.  J.  162. 

Qi)    High  on  Inj.  §  844  ;  Anshutz  vs.  Anshutz,  1  C.  E.  Green  N.  J.  162. 

{%)    Vanzant  vs.  Vanzant,  23  III.  536. 

(j)    Rose  vs.  Rose,  11  Paige,  Ch.  166 ;  High  on  Inj.  §  845. 


612  BILLS   FOE   DIVOKCE. 

Hearing  and  Decree,  etc. 

On  granting  a  decree  of  divorce  in  favor  of  the  wife,  it  is 
improper  to  perpetually  enjoin  the  husband  from  selling  his 
property  to  insure  the  payment  of  alimony,  {Jc) 

SECTION  XIV. 
HEARING    AND    DECREES. 

Trial  hy  a  jury. — The  statute  provides  that 

(§  7.)  "  When  the  defendant  appears  and  denies  the  charges 
in  the  complainant's  bill  for  a  divorce,  either  party  shall  have 
the  right  to  have  the  cause  tried  by  a  jury." 

Forming  an  issue. — The  court  may  direct  an  issue  to  be 
tried  by  the  jury,  as  the  same  may  be  made  up  by  the  plead- 
ings. And  it  would  tend  to  promote  justice,  and  aid  the  court 
in  it^i  decree,  if  the  jury  were  instructed  to  find  on  each  issue 
raised  by  the  pleadings  and  proof,  instead  of  finding  a  general 
verdict.  (/) 

The  issues,  if  there  be  more  than  one,  should  be  distinct  and 
explicit,  presenting  in  each  a  single  question,  so  clearly  that  it 
cannot  be  misunderstood  by  the  jury,  and  their  verdict  should 
be  responsive  to  each,  (m) 

No.  184.     Order  directing  issues  of  fact  to  he  tried  hy  a  jury 
in  a  divorce  suit. 

{Caption,  and  title  of  caiise  as  in  No.  79,  ante,  page  198.) 

It  is  ordered  that  upon  the  pleadings  filed  in  this  cause,  the 
following  issues  of  fact  be  submitted  to  and  tried  by  the  jury, 
to  wit : 

1.  Has  the  defendant  committed  adultery  subsequently  to  his 
marriage  with  the  complainant,  in  manner  and  form  as  charged 
in  the  bill  ? 

2.  Has  the  defendant  been  guilty  of  extreme  and  repeated 
cruelty  towards  the  complainant,  in  manner  and  form,  as 
charged  in  the  bill  ? 

{Let  the  questions  correspond  with  the  issues  presented  hy  the 
pleadings.) 

(Jc)  ErHsaman  vs.  Errissman,  25  111.  136. 
(0  Von  OlaJm  vs.  Von  Olahn,  46  111.  134. 
(m)  Ante,  p.  190 ,  Milk  vs.  Moore,  39  111.  588. 


BILLS  FOE  DIVOECE.  513 

Hearing  and  Decree  —  In  case  of  Default,  etc. 

In  case  of  default. — The  statute  provides  that 

(§  8.)  "  If  the  bill  is  taken  as  confessed,  the  court  shall  proceed 
to  hear  the  cause  by  examination  of  witnesses  in  open  court,  and 
in  no  case  of  default  shall  the  court  grant  a  divorce,  unless  the 
judge  is  satisfied  that  all  proper  means  have  been  taken  to  notify 
the  defendant  of  the  pendency  of  the  suit,  and  that  the  cause  of 
divorce  has  been  fully  proven  by  reliable  witnesses.  Whenever 
the  judge  is  satisfied  that  the  interests  of  tlie  defendant  require  it, 
the  court  may  order  such  additional  notice  as  equity  may  seem 
to  require." 

A  court  has  no  authority  to  decree  a  divorce  on  a  bill  taken 
for  confessed,  without  proof  to  sustain  its  allegations.  The 
court  may,  under  the  statute,  examine  witnesses  orally  in 
court,  o]'  it  may,  under  its  general  chancery  powers,  refer  the 
cause  to  the  master  to  take  proofs,  or  depositions  in  writing 
may  be  used  ;  but  in  some  way,  the  facts,  to  justify  granting  the 
divorce,  must  be  proven  to  the  court,  {n) 

In  proceedings  for  a  divorce,  where  the  bill  is  taken  for  con- 
fessed, it  is  sufficient  that  the  record  shows  proof  was  heard 
sustaining  the  allegations  of  the  bill,  without  preserving  the 
evidence  in  the  record,  {p) 

Confessions  of  defendant. — The  statute  provides  that 

(§9.)  "  No  confession  of  the  defendant  shall  be  taken  as 
evidence  unless  the  court  or  jury  shall  be  satisfied  that  such 
confession  was  made  in  sincerity  and  without  fraud  or  collusion 
to  enable  the  complainant  to  obtain  a  divorce." 

But  in  a  matter  of  divorce,  it  will  be  presumed  that  the 
court  granting  it,  if  it  received  admissions  as  evidence,  properly 
scrutinized  the  evidence,  so  as  to  be  satisfied  that  the  admissions 
were  made  in  sincerity  and  without  fraud,  {p) 

Mere  confession  of  adultery  is  not  sufficient  in  itself  to  sup- 

(n)    SJiilUnger  vs.  Shillinger,  14  111.  147. 

(o)  Davis  vs.  Dams,  30  111.  180 ;  Hawes  vs.  Hawes,  33  El.  287  ;  ShiUinger 
vs.  Shillinger,  14  111.  147. 

(j?)  Bergen  vs.  Bergen,  22  111.  187 
33 


614  BILLS   FOR  DIVORCE. 


Hearing  and  Decree  —  Forna  of  Decree  of  Divorce. 

port  the  charge,  {q)  The  proof  must  be  clear  and  positive,  (r) 
It  must  be  proved  by  direct  or  circumstantial  evidence,  and  not 
on  mere  suspicion,  or  even  on  bad  reputation,  (s) 

Collusion. — The  statute  further  provides  that 
(§  10.)  "  If  it  shall  appear,  to  the  satisfaction  of  the  court, 
that  the  injury  complained  of  was  obtained  by  the  collusion  of 
the  parties,  or  done  with  the  assent  of  the  complainant  for  the 
purpose  of  obtaining  a  divorce,  or  that  the  complainant  was 
consenting  thereto,  or  that  both  parties  have  been  guilty  of 
adultery,  when  adultery  is  the  ground  of  complaint,  then  no 
divorce  shall  be  decreed." 

Where  there  is  collusion  between  the  parties,  a  divorce  will 
not  be  granted,  {t) 

Proof  of  foreign  marriages. — The  statute  provides  that 
(§  11.)  "  A  marriage  which  may  have  been  celebrated  or  had 
in  any  foreign  state  or  country,  may  be  proved  by  the  acknowl- 
edgment of  the  parties,  their  cohabitation,  and  other  circum- 
stantial testimony." 

Changing  of  wife^s  name. — The  statute  authorizes, 

(§  16.)  "  The  court,  upon  granting  to  a  woman  a  divorce  from 

the  bonds  of  matrimony,  may  allow  her  to  resume  her  maiden 

name,  or  the  name  of  any  former  husband."^. 

No.  185.     Decree  of  divorce  on  the  ground  of  adidtery,  pro 
confesso ;  changing  name  of  complainant. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint therein,  taken  as  confessed  by  the  defendant,  and  the 
oral  testimony  of  witnesses  sworn  and  examined  in  open  court ; 
and  the  court  having  heard  the  arguments  of  counsel,  and  being 

(q)  Hansley  vs.  Hansley,  10  Ired.  Eq.  506  ;  Bergen  vs.  Bergen,  22  111.  187; 
White  vs.  White,  45  N.  H.  121 ;  Derhy  vs.  Derby,  6  C.  E.  Greene,  N.  J.  36. 

(r)  Berckmans  vs.  Berckmans,  2  C.  E.  Greene,  N.  J.  453 ;  Cla/re  vs.  Clare, 
4  C.  E.  Greene,  N.  J.  37. 

(s)    Thomas  vs.  Thomas,  51  111.  162. 

if)    Wolf  vs.  Wolf,  Wright,  Ch.  243. 


BILLS  FOE  DIVORCE.  616 

Form  of  Decrees  —  For  Adultery,  etc. 

fully  advised  in  the  premises,  and  on  consideration  thereof, 
finds  that  all  the  material  facts  charged  in  the  said  bill  are 
true,  and  that  the  defendant  has  committed  adultery  subse- 
quently to  his  marriage  with  the  complainant ; 

It  is  therefore  ordered^  adjudged  and  decreed^  by  the  court, 
that  the  marriage  between  the  complainant  and  the  defendant 
be  dissolved,  and  the  same  is  hereby  dissolved  accordingly ; 
and  the  said  parties  are,  and  each  of  them  is,  freed  from  the 
obligations  thereof. 

It  is  further  ordered,  adjudged  and  decreed,  that  the 
complainant  be  allowed  to  resume  her  maiden  name  of  A.  M., 
the  same  as  if  such  marriage  had  not  taken  place. 

It  is  further  ordered,  that  the  defendant  pay  the  costs  and 
charges  of  this  suit,  and  that  execution  issue  therefor. 

No.  186.     Decree  for  divorce  ov.  the  ground  of  adultery,  and 
for  the  custody  of  children,  pro  confesso. 

{Ga/ption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of 
complaint  therein  ;  and  the  defendant  having  been  duly  served 
with  the  process  of  summons  in  this  cause,  more  than  ten  days 
prior  to  the  first  day  of  the  present  term  of  this  court ;  and 
having  been  three  times  called  in  open  court,  to  appear,  except, 
demur,  plead  or  answer  the  complainant's  bill,  came  not,  but 
herein  made  default ;  and  the  court  having  ordered  that  the 
said  bill  of  complaint  and  the  matters  therein  contained  be 
taken  as  confessed ',{ and  the  court  having  heard  the  oral  testi- 
mony of  witnesses,  sworn  and  examined  in  open  court  ;"■  and 
having  heard  the  arguments  of  counsel,^and^being  fully  advised 
in  the  premises,  and  on  consideration  thereof  doth  find  that 
all  the  material  facts  alleged  in  the  said  bill  are  true,^and  that 
the  defendant  has  committed  adultery  subsequently  to  his  mar- 
riage with  the  complainant ;  and  that  he  is  a  person  wholly 
unfit  to  have  the  care,  custody,  control  or  education  of  children  ; 
It  is  therefore  ordered,  adjudged  and  decreed,  by  the  court, 
that  the  marriage  between  the  complainant  and  defendant  be 
dissolved,  and  the  same  is  hereby  dissolved  accordingly ;  and 
the  parties  are,  and  each  of  them  is,  freed  from  the  obligations 
thereof. 

It  is  further  ordered,  adjudged  and  decreed,  by  the  court, 
that  the  complainant  have  the  care,  custody,  control  and  educa- 
tion of  the  said  children,  to  wit.,  C.  B.  and  D.  B.,  without  any 
interference  on  the  part  of  the  defendant,  until  the  further 
order  of  this  court. 


516  BILLS  FOR  DIVORCE. 


Form  of  Decree  of  Divorce,  etc. —  Alimony  and  Expenses. 

It  is  further  ordered^  that  the  defendant  pay  the  costs  of  this 
suit,  and  that  execution  issue  therefor.  And  the  court  reserves 
the  consideration  of  alimony  for  a  future  order  and  decree 
herein. 

iVo.  187.     Decree  for  divorce  on  the  ground  of  extreme  and 
repeated  cruelty,  ujpon  verdict  of  a  jury. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of 
complaint  herein,  the  answer  of  the  defendant  thereto,  and  the 
replication  of  the  complainant  to  such  answer ;  and  a  jury  hav- 
ing been  called,  selected  and  sworn,  to  wit :  {Here  insert  the 
names  of  the  jurors,)  to  try  the  issue  herein,  viz. :  whether  the 
defendant  has  been  guilty  of  extreme  and  repeated  cruelty 
towards  the  complainant,  in  manner  and  form  as  charged  in 
the  complainant's  bill  of  complaint ;  and  the  said  trial  having 
proceeded,  and  the  said  jury  having  heard  the  evidence  offered 
by  the  respective  parties,  and  the  arguments  of  counsel,  found 
the  said  issue  in  the  affirmative ;  and  the  defendant  having 
interposed  a  motion  to  set  aside  said  verdict  and  for  a  new  trial ; 
and  the  court  having  heard  the  arguments  of  counsel  thereon, 
and  the  reasons  in  support  thereof,  and,  on  consideration  of  the 
same,  having  overruled  said  motion  ; 

It  is  therefore  ordered,  adjudged  and  decreed,  by  the  court, 
that  the  marriage  between  tlie  complainant  and  the  defendant 
be  dissolved,  and  the  same  is  hereby  dissolved  accordingly; 
and  the  said  parties  are,  and  each  of  them  ^  is,  freed  from  the 
obligations  thereof.  And  tlie  court  not  being  sufficiently  ad- 
vised as  to  the  question  of  alimony  in  said  cause,  does  reserve 
the  consideration  thereof  until  a  future  and  further  hearing 
thereon. 

SECTION  XV. 

ALIMONY    AND    EXPENSES. 

Pendente  lite. — It  is  provided  by  the  statute  that 
(^  15.)  "In  all  cases  of  divorce,  the  court  may  require  the 
husband  to  pay  to  the  wife,  or  pay  into  court  for  her  use 
during  the  pendency  of  the  suit,  such  sum  or  sums  of  money 
as  may  enable  her  to  maintain  or  defend  the  suit;  and  in  every 
suit  for  a  divorce,  the  wife,  when  it  is  just  and  equitable,  shall 
be  entitled  to  alimony  during  the  pendency  of  the  suit.  And 
in  case  of  appeal  or  writ  of  error  by  the  husband,  the  court  in 


BILLS   FOR   DIVORCE.  517 

Alimony  and  Expenses. 

which  the  decree  or  order  is  rendered,  may  grant  and  enforce 
the  payment  of  such  money  for  her  defense,  and  such  equitable 
alimony  during  the  pendency  of  the  appeal  or  writ  of  error,  as 
to  such  court  shall  seem  reasonable  and  proper." 

AXimowy pendente  lite  is  a  common  law  right,  and  courts 
of  chancery  are  bound  to  enforce  it  as  much  as  any  other  pro- 
vision of  the  common  law.  (u) 

When  a  suit  is  pending  for  a  divorce,  it  is  legally  improper 
for  the  parties  to  cohabit  together,  {v)  This  single  fact,  there- 
fore, is  sutlicient  to  entitle  the  wife,  who  has  not  sufficient  pro- 
perty of  her  own,  whether  complainant  or  defendant,  to  alimony 
during  its  pendency,  {uo)  Upon  the  same  principle,  the  hus- 
band, who  has  all  the  money,  while  the  wife  has  none,  is  bound 
to  furnish  her,  whether  plaintiff  or  defendant,  with  the  means 
to  defray  her  expenses  in  the  suit ;  otherwise  she  would  be 
denied  justice,  {x) 

Where  the  wife  has  sufficient  separate  property  of  her  o\'.n, 
the  reason  for  giving  her  either  temporary  alimony,  or  money 
to  defray  her  expenses  in  the  suit  does  not  exist,  and  slu-  will 
not  be  entitled  to  either,  {y) 

The  allowance  of  ?i\\viio\\y  pendente  lite  is  discretionary  with 
the  court,  (s)  It  is  therefore  necessary  that  a  meritorious  case 
be  presented  for  its  consideration. 

The  court  will  seldom  deny  alimony  to  the  wife  when  she  is 
made  defendant.  If  a  man  brings  suit  against  his  wife,  he 
should  be  prepared  to  furnish  her  moans  for  her  defense. 

(if)    Petrie  vs.  Tlu  I-z'jM,  -.0  111.  334;  see  Bmet  vs.  Pfirshimj,  86  111.  83. 

(v)  Sullivan  vs.  Sullivan,  2  Add.  299,  2  Eng.  Eccl.  R.  314 ;  Clowes  vs. 
Clowes,  9  Jur.  356 ;  Bishop  on  Mav.  and  Div.  §  527. 

(w)  Jones  vs.  Jonef^,  2  Barb.  Cb.  R.  140;  Holmes  vs.  Holmes,  Walker,  Ch, 
R.  474  ;  Wilson  \s.Wil»on,  2  Hagg.  Ch.  R.  203;  Armstrong  vs.  Armstrong, 
35  111.  109. 

(a-)  H'Aguiletr  vs.  D'Aguilar,  1  Hagg.  Ch.  R.  773,  3  Eng.  Eccl.  R.  329, 
338;  6  Eng.  Eccl.  R.  372;  Holmes  vs.  Holmes,  Walker,  Ch.  R.  474;  Holmes 
vs.  Holmes,  2  Lee,  90  ;  Turst  vs.  Turst,  2  Lee,  92  ;  Armstrong  vs.  Armstrong, 
85  111.  109  ;  Logan  vs.  Logan,  2  B.  Monr.  142 ;  Pu>s.'  vs.  Rose,  11  Paige,  Ch. 
166;  yeirman  vs.  Newman,  69  111.  167. 

{'j)  Bishop  on  Mar.  and  Div.  §  572;  Poynt.  on  Mar.  and  Div,  260.  261; 
Barthlt  vs.  Bartleit.  1  Clarke,  N.  Y.  460. 

{z)  Bergen  vs.  Bergen,  22  111.  187;  see  Blal-e  vs.  Blair,  80  111.  523. 


518  BILLS   FOR  DIVORCE. 

Alimony,  etc. —  Petition  for,  etc. 

Prosecuting  as  a  poor  person. — Tlie  statute  provides  that 
(§  14.)  "  Any  woman  suing  for  a  divorce  who  shall  make  it 
appear  satisfactorily  to  the  court  that  she  is  poor,  and  unable 
to  pay  the  expenses  of  such  suit,  shall  be  allowed  by  the  court 
to  prosecute  her  complaint  without  costs  ;  and  in  such  cases  no 
fees  shall  be  charged  by  the  officers  of  the  court." 

Questions  of  guilt  not  considered. — The  question  of  the 
guilt  or  innocence  of  the  wife  will  not  be  entered  into  in 
settling  the  allowance  of  alimony  pendente  lite,  by  hearing 
conflicting  affidavits,  {a)  She  must,  however,  in  her  petition 
for  alimony,  deny  the  charges  contained  in  the  bill,  or  show 
some  valid  defense  to  the  husband's  suit,  unless  she  has  denied 
it  on  oath  in  her  answer,  (b) 

The  husband  may,  however,  it  is  said,  show  that  her  mis- 
conduct was  so  glaring  that  no  aid  should  be  given  to  her  to 
prosecute  her  suit ;  or,  if  she  had  been  charged  with  adultery, 
that  she  was  still  living  with  the  partner  of  her  guilt,  (c) 

Hoio  applied  for. — In  a  suit  for  a  divorce,  the  application 
for  alimony  and  expenses  should  be  made  upon  petition,  after 
due  notice  to  the  opposite  party,  {d) 

No.  188.     Petition  for  alimony  pendente  lite,  and  expenses. 

In  the Court. 

A.  B.  )  Term,  18  — . 

vs.     >■  In  Chancery  for  a  Divorce. 

B.  B.  ) 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

The  petition  of  B.  B.,  of,  etc.,  the  above-named  defendant, 
respectfully  represents  unto  your  honor,  that  the  complainant, 

{a)  Wood  VB.  Wood,  2  Paige,  Ch.  114 ;  Osgood  vs.  Osgood,  Id.  621 ;  Smith 
VB.  Smith.  1  Edw.  Ch.  255. 

(b)    Osgood  vs.  Osgood,  2  Paige,  Ch.  631 ;  Wood  YB.Wood,  lb.  114. 

(r)  Fowler  vs.  Fowler,  4  Abbott,  N.  T.  412 ;  see  Oriffln  vs.  Griffin,  21 
How.  N.  Y.  364;  S.  C.  23  How.  N.  Y.  189. 

{d)    LongfeUow  vs.  Longfellow,  1  Clarke,  N.  Y.  344 ;  2  Barb.  Ch.  Pr.  268. 


BILLS   FOR  DIVORCE.  519 

Petition  for  Alimony  —  Order  of  Reference  as  to. 

A.  B.,  has  lately  filed  his  bill  in  this  court,  against  your  peti 
tioner,  to  obtain  a  decree  dissolving  the  marriage  between  him 
and  yonr  petitioner,  charging  yoni' petitioner  with  the  crime  of 
adultery  (w  whatever  the  charge  may  he) ;  that  your  petitioner 
has  put  in  her  answer  to  the  bill  of  complaint  denying  such 
charge,  as  by  reference  to  the  said  answer,  now  on  file  in  said 
cause,  will  more  fully  appear. 

And  your  petitioner  further  represents,  that  she  is  wholly 
destitute  of  the  means  of  supporting  herself  during  the  pendency 
of  this  suit,  and  of  carrying  on  the  defense,  and  defraying  the 
costs  and  expenses  attending  the  same ;  that  your  petitioner  has 
been  informed  and  believes,  and  so  states  the  facts  to  be,  that 
the  complainant  has  real  estate  and  personal  property  to  a  large 
amount,  and  amply  sufficient  to  enable  him  to  advance  thereout, 
to  your  petitioner,  such  sums  as  may  be  necessary  for  the  above- 
mentioned  purpose ;  that  your  petitioner  is  informed  and  be- 
lieves, that  the  complainant  is  the  owner  of  property  to  the 

amount  of  more  than dollars,  and  that  his  annual  income 

is  about dollars. 

Your  petitioner,  therefore,  prays  that  the  complainant  may, 
by  an  order  of  this  court,  be  required  to  pay  to  your  petitioner 
a  reasonable  sum  for  her  support  and  maintenance  during  the 
pendency  of  this  suit ;  and  such  sum  or  sums  of  money  as  may 
be  necessary  to  enable  her  to  carry  on  her  defense,  to  pay  solic- 
itor's fees,  and  to  defray  the  other  necessary  costs  and  expenses 
thereof;  and  for  such  other  and  further  relief  in  the  premises 
as  to  your  honor  may  seem  meet. 

Subscribed  and  sworn  to,  etc.  C.  D. 

The  amount  of  allowance. — The  amount  of  the  allowance 
of  dXwsiQVij  pendente  lite.,  and  for  expenses,  may  be  settled  by 
the  court  without  a  reference,  whenever  the  facts  are  sufficiently 
before  it.  {e)  In  general,  however,  a  reference  to  the  master  is 
directed.  (/") 

No.  189.     Order  of  reference  as  to  alimony  pendente  lite,  amd 

expenses. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

On  reading  and  filing  the  petition  of  the  defendant  in  this- 
cause,  duly  verified,  and  the  affidavits  accompanying  the  same, 

(e)  Hammond  vs.  Hammond,  1  Clarke,  N.  T.  151 ;  Monroy  vs.  Monroy,  1 
Edw.  Ch.  382. 

(/)  3  Barb.  Ch.  Pr.  268 ;  2  Van  Santv.  Eq.  Pr.  275-276. 


620  BILLS   FOE  DIVOKCE. 

Report  of  Master  as  to  Alimony. 

and  the  affidavits  bj  the  complainant  in  opposition  thereto,  and 
upon  hearing  the  arguments  of  the  counsel  for  the  respective 
parties,  and  the  court  not  being  sufficiently  advised  in  the 
premises,  doth  order  that  it  be  referred  to  the  master  in 
chancery  of  this  court  to  inquire  and  report  what  would  be  a 
reasonable  sum  to  be  allowed  to  the  defendant  for  her  support 
and  maintenance  during  the  pendency  of  this  suit.  And  it  is 
further  ordered,  that  the  said  master  inquire  and  report  what 
would  be  a  reasonable  sum  to  be  allowed  to  the  defendant,  to 
enable  her  to  carry  on  her  defense  in  this  suit,  and  to  defray 
the  necessary  costs  and  expenses' thereof ;  and  that  the  said 
master  report  as  to  the  times  and  manner  in  which  the  said 
sums  should  be  paid  by  the  complainant. 

Wo.  190.     Report  of  master  as  to  allowance  of  alimony. 

{Title  of  cause  as  in  No.  1S8,  ante,  page  518.) 

To  the  Honorable ,  Judge  of  the  ■ Court  of  the  County 

of  , in  the  State  of , 

In  Chancery  sitting : 

In  pursuance  of  an  order  of  this  court  entered  on,  etc., 
whereby  it  was  referred  to  me,  the  undersigned,  master  in 
chancer}',  to  inquire  and  report  what  would  be  a  reasonable 
sum  to  be  allowed;  etc.  {as  in  the  order).,  I,  the  said  master,  do 
report : 

That  having  given  due  notice  to  the  respective  parties  of 
the  time  and  place  of  the  hearing  thereof,  and  having  been 
attended  by  the  solicitors  for  the  complainant  and  defendant 
respectively,  and  having  heard  the  allegations  and  proofs  as  to 
the  value  of  the  complainant's  {or  defendants)  estate  at  the 
time  of  the  commencement  of  this  suit,  and  the  allowance 
proper  to  be  made,  I  certify  and  report,  that  the  complainant 
{or  defendant)  has  real  estate,  to  wit,  etc.  {Here  describe  it)^  of 

the  value  of  al)out dollars,  the  yearly  income  of  which  is 

about dollars;  that  the  whole  personal  property  of  the 

complainant  {or  defendant)  consists  of,  etc.,  and  its  value  is 

about dollars ;  that  two  children  of  the  complainant  and 

defendant  live  with  and  are  entirely  supported  by,  etc.,  one 

being  a  boy,  aged years,  and  the  other  a  girl,  aged 

years. 

I  further  report  that,  in  my  opinion,  the  sum  of dollars 

a  year,  payable  monthly,  is  a  suitable  allowance  for  the  present 
separate  maintenance  and  alimony  of  the  defendant  {or  com- 

plainani ;)  that  it  ought  to  be  ]i:iy able  from,  etc.;  that 

dollars  would  be  a  reasoiiibh'  sum  to  be  allowed  to  the  defend- 


BILLS   FOR  DIVORCE.  521 

Orders  for  Alimony  —  Permanent  Alimony,  etc. 

ant  {or  complainant)  to  enable  her  to  carry  on  her  defense  {or 
prosecution)^  and  defray  the  necessary  costs  and  expenses  in 
this  suit ;  and  that  my  fees  amount  to doUars. 

All  of  wliicli  is  respectfully  submitted. 

Dated,  etc.  ,  Master  in  Chancery. 

No.  101.     Order  confirming  master'' 8  report  "of  alimony,  etc. 

{Caption.,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

And  now,  on  this  day,  comes  the  master  in  chancery  of  this 
court,  and  makes  report  of  what  would  be  a  reasonable  sum  to 
be  allowed,  etc.,  {as  in  report;)  and  the  court  having  heard 
the  arguments  and  allegations  of  the  counsel  for  the  respect- 
ive parties,  in  support  of  and  against  the  confirmation  of  said 
report,  and  having  considered  the  same,  and  being  fully  ad- 
vised in  the  premises ; 

It  is  ordered,  that  the  report  of  the  master  in  chancery  afore- 
said, be,  and  the  same  is  in  all  things,  approved  and  confirmed  ; 
and  that  the  complainant  {or  defendant)  do  pay  to  the  defend- 
ant, etc.  {As  in  the  report^) 

No.  192.     Interlocutory  decree  for   alimony,  etc.,  pendente 
lite,  and  expenses,  without  reference. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

And  now,  on  this  day,  came  the  complainant,  by  L.  M.,  her 
solicitor,  and  the  defendant,  by  R.  S.,  his  solicitor,  and  this 
cause  coming  on  to  be  heard  upon  the  application  of  the  com- 
plainant for  alimonj  pende7ite  lite,  and  the  court  having  heard 
the  evidence,  and  the  arguments  of  counsel  for  the  respective 
parties,  and  being  fully  advised  in  the  premises,  doth  order, 
adjudge  and  decree  that  the  defendant  pay  to  the  complainant, 

or  her  solicitor,  the  sum  of dollars  on,  etc.,  and  that  he 

pay  to  the  complainant,  or  her  solicitor,  the  further  sum  of 

dollars  on  or  before  the  1st  day  of  each  and  every  month, 

commencing  on,  etc.,  for  her  support  during  the  pendency  of 
this  suit. 

Permanent  alimony  and  maintenance. — The  statute  pro- 
vides that 

(§  18.)  "  When  a  divorce  shall  be  decreed  the  court  may 
make  such  order  touching  the  alimony  and  maintenance  of  the 
wife,  the  care,  custody  and  sn]:)port  of  the  children,  or  any  of 
them,  as,  from  the  circumstances  of  the  parties  and  the  n.iture 


532  BILLS   FOR  DIVOECE. 

Perinaneut  Alimony,  etc. 

of  the  case,  shall  be  ht,  reasonable  and  just ;  and  in  case  the 
wife  be  complainant,  to  order  the  defendant  to  give  reasonable 
security  for  such  alimony  and  maintenance,  or  may  enforce 
the  payment  of  such  alimony  and  maintenance  in  any  other 
manner  consistent  with  the  rules  and  practice  of  the  court. 
And  the  court  may,  on  application,  from  time  to  time,  make 
such  alterations  in  the  allowance  of  alimony  and  maintenance, 
and  the  care,  custody  and  support  of  the  children,  as  shall 
appear  reasonable  and  proper. 

(§  19.)  "  When  a  divorce  is  granted  to  a  woman  who  shall, 
in  good  faith,  have  intermarried  with  a  man  having  at  the  time 
of  such  marriage  another  wife,  or  wives,  living,  the  court  may, 
nevertheless,  allow  the  complainant  alimony  and  maintenance 
the  same  as  in  other  cases  of  divorce ;  but  no  such  allowance 
shall  be  made  as  will  be  inconsistent  with  the  rights  of  such 
other  wife  or  wives,  which  shall  first  be  ascertained  by  the 
court  before  the  granting  of  such  alimony  or  maintenance." 

Sales  of  real  estate  to  satisfy  decree. — The  statute  further 
provides  that 

(§  20.)  "  Whenever,  in  any  case  of  divorce,  a  decree  for  ali- 
mony or  maintenance  is  made  a  lien  on  any  real  estate  to  secure 
the  payment  of  any  money  to  become  due  by  installments,  and 
a  sale  of  such  real  estate  shall  become  necessary  to  satisfy  any 
of  such  installments,  the  property  shall  be  sold  subject  to  the 
lien  of  the  installments  not  then  due,  unless  the  court  shall,  at 
the  time,  direct  otherwise,  and  subsequent  sales  may,  from 
time  to  time,  be  made  to  enforce  such  lien  as  the  installments 
may  become  due,  unless  all  installments  are  paid." 

The  allowance  of  alimony  for  the  wife  is  discretionary  with 
the  court,  and  so  also  is  the  allowance  for  the  maintenance  of 
infant  children,  {g)  And  the  supreme  court  wdll  not  disturb 
tlie  decree  of  the  court  below  on  a  question  of  alimony,  unless 
manifest  injustice  has  been  done,  {h) 

Alimony  will  be  granted  in  proportion  to  the  wants  of  the 
party  asking  it,  and  the  ability  of  the  person  who  is  to  pay 

ig)    Bergen  vs.  Bergen,  22  111.  187;  Plaster  vs.  Plaster,  67  111.  93. 

{h)   Stewartson  vs.  Stewatison,  15  111.  145;  see  Ross  vs.  Ross,  78  111.  402. 


BILLS  FOR  DIVORCE.  &23 

Alimony  —  Decree  for,  etc. 

it.  And  it  may  at  any  time  be  increased  or  diminished.  («") 
It  will  be  allowed  in  such  form  as  will  best  meet  the  condition 
of  the  parties,  and  make  the  provisions  a  sure  reliance.  The 
court  may  decree  the  lands  of  the  defendant  to  the  complain- 
ant in  fee,  and  may  change,  after  the  decree,  the  allowance,  in 
any  manner  consistent  with  equitable  principles,  [f) 

Upon  a  decree  of  divorce,  instead  of  directing  that  the  de- 
fendant be  perpetually  enjoined  from  selling  his  property,  and 
that  he  be  imprisoned  until  he  give  bond  and  security  for  the 
payment  of  alimony,  the  decree  should  make  the  alimony  a 
lien  upon  his  reality,  to  be  secured  by  mortgage ;  the  sale  to 
be  enjoined  until  such  mortgage  be  completed,  {k) 

An  allowance  of  a  sum  in  gross  in  lieu  of  alimony,  is  a  bar 
to  all  further  claims  therefor,  (l) 

Title  ofpropert/y  held  hy  one  party,  which  equitably  belongs 
to  the  other. — It  is  provided  by  the  statute,  that 

(§  IT.)  "  Whenever  a  divorce  is  granted,  if  it  shall  appear  to 
the  court  that  either  party  holds  the  title  to  property  equitably 
belonging  to  the  other,  the  court  may  compel  conveyance 
thereof  to  be  made  to  the  party  entitled  to  the  same,  upon  such 
terms  as  it  shall  deem  equitable." 

No.  193.     Decree  for  permanent  alimony 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  again  coming  on  to  be  heard,  as  to  the  allowance 
of  alimony  to  be  paid  by  the  defendant  to  the  complainant ; 
upon  the  bill  of  complaint  herein,  the  answer  thereto,  the 
replication  of  the  complainant  to  such  answer,  and  the  proofs 
taken  in  said  cause,  and  the  testimony  introduced  and  heard 
in  open  court;  and  the  court  having  heretofore  rendered  a 
decree  in  said  cause,  dissolving  the  marriage  between  the  com- 

(i)    Foote  vs.  Foote,  23  111.  425 ;  Parker  ve.  Parker,  61  111.  369. 

{j)  Wheeler  ys.WTieeler,  18  111.  39 ;  Armstrong  vs.  Armstrong,  85  HI.  109  ; 
Bergen  vs.  Bergen,  22  111.  189  ;  Joliff  vs.  Joliff,  32  111.  527 ;  see  Von  Glahn 
vs.  Von  Glahn,  46  111.  134 ;  Keating  vs.  Keating,  48  111.  241 ;  Plaster  vs.  Plas- 
ter, 53  111.  445  ;  Wightman  vs.  Wightman,  45  111.  167. 

{k)   Errisman  vs.  Errisman,  25  111.  136 ;  Keating  vs.  Keating,  48  111.  243. 

(0    Plaster  vs.  Plaster,  47  111.  290 


524  BILLS  FOR  DIVORCE. 

Decree  for  Alimony. 

plainant  and  defendant ;  and  having  reserved  the  consideration 
of  the  question  of  alimony ;  and  ^he  connsel  for  the  respective 
parties  having  been  heard,  and  the  court  being  fully  advised  in 
the  premises,  and  on  consideration  thereof; 

It  is  ordered,  adjudged  and  decreed,  by  the  court,  that  the 

defendant  pay  to  the  complainant   the   sum   of dollars, 

during  eacli  and  every  year,  commencing  on,  etc.,  and  payable 
quarterly  in  advance,  until  further  ordered  by  tliis  court ;  and 
that  the  defendant  pay  the  costs  of  this  suit  to  be  taxed  by  the 

clerk  of  this  court,  within days  from  the  rendition  of  this 

decree  ;  and  that  in  default  of  the  payment  of  any  of  said  sums, 
in  the  manner,  and  at  the  times  herein  provided,  that  execution 
issue  therefor. 

It  is  further  ordered^  adjudged  and  decreed,  by  the  court, 
that  this  decree  shall  be  and  remain  a  lien  upon  all  the  lands 
and  tenements  of  the  defendant,  until  the  defendant  shall 
execute  a  good  and  sufficient  mortgage  upon  his  real  estate,  or 
so  much  thereof  as  may  be  necessary  to  secure  the  prompt  pay- 
ment of  the  sums  herein  ordered  to  be  paid,  and  such  mort- 
gage be  approved  by  the  court,  or  under  its  direction. 

For  other  Illinois  cases  relating  to  alimony,  see  Chestnut  vs. 
Chestnut,  77  111.  340  :  Deenis  vs.  Deans,  19  111.  74;  Andrews 
vs.  Andrews,  69  111.  609  ;  Becler  vs.  Becl'cr,  79  111.  .532  ;  Binet 
vs.  Eiyenmann,  80  111.  274;  Resser  vs.  Resser^  82  111.  442. 


CHAPTEK  XXXIll. 

8EPAEATE    MAINTENAJfCE. 

Section  1.  When  Granted. 

2.  Proceedings  to  Obtain. 

3.  Defenses  to. 

4.  Practice  in,  and  Decbehs. 

SECTION  I. 

WHEN    GRAiJTED. 

The  statute  of  Illinois  provides  that  married  women  who^ 
without  their  fault,  now  live,  or  hereafter  may  live  separate 
and  apart  from  their  husbands,  may  have  their  remedy  in  equity 
in  their  own  names  respectively,  against  their  said  husbands, 
for  a  reasonable  support  and  maintenance,  while  they  so  live 
or  have  so  lived  separate  and  apart ;  and  in  determining  the 
amount  to  be  allowed,  the  court  shall  have  reference  to  the 
condition  of  the  parties  in  life,  and  the  circumstances  of  the 
respective  cases ;  and  the  court  may  grant  allowance  to  enable 
the  wife  to  prosecute  her  suit  as  in  cases  of  divorce. 

Ground  of  separate  rtiaintenance. — We  apprehend  that  the 
phrase  "  without  their  fault,"  used  in  the  statute,  has  the  same 
significance  as  the  statute  of  New  York  allowing  a  separation 
and  limited  divorce.  And  what  will  justify  a  proceeding  in 
the  one  case,  is  applicable  to  the  other.  At  common  law  such 
a  proceeding  was  unknown ;  it  is,  therefore,  purely  a  statutory 
remedy. 

In  New  York,  an  action  for  limited  divorce  or  separation, 
may  be  brought  for  the  following  causes :  firsts  the  cruel  and 
inhuman  treatment,  by  the  husband,  of  the  wife ;  second,  such 
conduct  on  the  part  of  the  husband  towards  his  wife,  as  may 
render  it  unsafe  and  improper  for  her  to  cohabit  with  him ;  and 
third,  the  abandonment  of  the  wife  by  the  husband,  and  his 
refusal  or  neglect  to  provide  for  her. 


626  SEPARATE   MAINTENANCE. 

When  Granted  —  Grounds  for. 

In  the  case  of  a  separation  sought  on  the  ground  of  cruel  and 
inhuman  treatment,  it  was  held,  in  New  York,  that  the  cruelty 
which  will  entitle  the  party  to  such  a  judgment,  is  that  kind 
of  cruelty  which  endangers  the  life  or  health  of  the  complain- 
ant, and  renders  cohabitation  unsafe,  {a)  But  to  constitute 
cruelty,  bodily  injury  or  acts  of  personal  violence,  are  not 
necessary.  It  is  made  out  if  there  is  a  series  of  unkind  treat- 
ment, accompanied  by  words  of  menace,  creating  a  reasonable 
apprehension  that  bodily  injury  may  result  unless  prevented ; 
and  the  word  "  unsafe,"  in  the  New  York  statute,  means  the 
same  thing,  {h)  Words  of  menace,  accompanied  by  a  proba- 
bility of  bodily  violence,  will  be  suiScient;  and  it  may  be 
enough  if  he  inflict  indignity  merely,  and  threaten  pain,  (c) 

But  the  causes  for  apprehension  must  be  weighty,  and  show 
an  impossibility  that  the  duties  of  the  marriage  life  can  be  dis- 
charged, {d  )  Thus,  the  husband's  refusal  to  permit  his  wife  to 
attend  church,  of  which  she  is  a  member,  is  not  a  ground  for 
separation,  {e)  Nor  is  occasional,  or  even  frequent  intoxication 
a  ground  for  separation ;  nor  do  occasional  sallies  of  passion, 
from  whatever  cause,  amount  to  legal  cruelty,  so  long  as  they 
do  not  threaten  bodily  harm.  (/*) 

An  allowance  will  not  be  allowed  to  a  wife  on  account  of  the 
cruelty  of  her  husband,  if  the  violence  complained  of  was 
induced  by  a  sufficient  provocation  on  her  part,  {g) 

As  to  a  proceeding  for  separate  maintenance,  on  the  ground 
of  abandonment,  it  has  been  held,  that,  there  must  be  shown 
both  an  abandonment  and  a  neglect  to  provide.  (A) 

For  any  of  the  grounds  for  divorce,  alluded  to  in  the  pre- 
ceding chapter,  a  bill  for  separate  maintenance  no  doubt  could 

{a)    Perry  vs.  Perry,  2  Paige,  Ch.  501. 

(6)    Mason  vs.  Mason,  1  Edw.  Ch.  278,  291 ;  2  Kent's  Com.  126. 

(c)    Whispell  vs.  WMsppll,  4  Barb.  217  ;  2  Van  Santv.  Eq.  Pr.  262,  263. 

\d)   2  Kent's  Com.  126 ;  WMsj)ell  vs.  Wliispell,  4  Barb.  217. 

(e)  Lawrence  vs.  Lawrence,  3  Paige,  Ch.  267 ;  and  see  Burr  vs.  Burr,  10 
Paige,  Ch.  20. 

(/)  Mason  vs.  Mason.  1  Edw.  Ch.  278. 

{g)  Boyd  vs.  Boyd,  Harper,  S.  C.  Eq.  144 ;  Griffin  vs.  Qriffin,  8  B.  Monr. 
120. 

{h    Ahreiifelt  vs.  Ahrenfelt,  Hoff.  Ch.  47;  see  Babhitt  vs.  Babbitt,  69  111.  277. 


SEPARATE   MAINTENANCE.  527 

Proceedings  to  Obtain  —  The  Bill,  etc. 

be  maintained.  A  wife  may  have  sufficient  grounds  for  a  full 
divorce,  jet  may  not  desire,  for  reasons  satisfactory  to  herself, 
not  to  proceed  to  that  extremity ;  in  which  case  she  may  have 
a  separate  maintenance  uuder  the  provisions  of  the  statute. 


SECTION  II. 

PKOOEEDINGS   TO   OBTAIN". 

Where  commenced. — The  statute  provides  that  "  The  pro- 
ceedings may  be  commenced  in  the  county  where  either  the 
husband  or  the  wife  resides ;  and  the  wife  will  not  be  required 
to  give  security  for  costs  in  any  such  proceeding." 

The  hill. — The  bill  for  a  separate  maintenance  may  be  framed 
substantially  as  a  bill  for  a  divorce,  except  that  the  prayer  is 
diiferent.  The  prayer  should  be  for  the  care,  custody  and  edu- 
cation of  the  children,  if  any,  and  that  the  defendant  be  com- 
pelled to  make  proper  and  suitable  provision  for  the  support 
and  maintenance  of  the  complainant  and  the  children. 

Injunction. —  If  an  injunction  is  deemed  necessary  to  restrain 
the  husband  from  disposing  of,  or  encumbering  his  property, 
or  from  interfering  with  the  complainant,  or  the  children, 
during  the  pendency  of  the  suit,  the  facts  to  justify  such  in- 
junction may  be  set  forth  in  the  bill  as  in  a  suit  for  a  divorce,  {i) 

No.  19  If..     Bill  for  separate  maintenance. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

Your  oratrix,  A.  B.,  of,   etc.,  respectfully  represents  unto 

your  honor,  that  she  is  a  resident  of  the  said  county  of ; 

that  on,  etc.,  your  oratrix  was  married  to  one  C.  B.,  the  defend- 
ant hereinafter  named,  at,  etc.,  and  continued  to  live  with  the 
defendant  C.  B.  as  his  wife  ever  since  said  marriage  until,  etc., 
when  your  oratrix  was  compelled  to  abandon  the  defendant 

(i)  See  No.  182,  ante,  p.  504. 


528  SEPARATE   MAINTENANCE. 

Form  of  Bill  for  Separate  Maintenance. 

C.  B.  for  the  causes  hereinafter  set  forth ;  that  during  the  time 
vour  oratrix  and  the  defendant  cohabited  as  husband  and  wife, 
they  had  two  children,  namely,  E.  B.  and  F.  B.,  the  said  E.  B. 
being  aged years,  and  the  said  F.  B. years. 

Tour  oratrix  further  represents,  that  during  the  time  your 
oratrix  and  the  defendant  cohabited  as  husband  and  wife,  your 
©ratrix  faithfully  discharged  all  her  duties  as  such  wife,  and  at 
all  times  treated  him  with  kindness  and  forbearance ;  but  that 
the  defendant,  a  few  months  after  said  marriage,  commenced  a 
course  of  unkind,  cruel  and  inhuman  conduct  towards  her, 
which  continued  until  she  finally  separated  from  him  on,  etc. ; 
and  that  on  divers  occasions,  while  she  lived  with  the  defend- 
ant, he  was  guilty  of  such  extreme  and  repeated  cruelty 
towards  her  as  to  render  it  unsafe  and  improper  for  her  to 
live  with  him ;  that  on.  etc.  {Sjjecify  the  particular  acts  of 
cruelty}) 

Your  oratrix  further  represents,  that  the  defendant  is  a  man 
of  violent  passion  and  ungovernable  temper;  that,  on  many 
occasions,  he  addressed  to  your  oratrix  the  most  opprobrious 
epithets,  and  threats  of  personal  violence,  and  has  repeatedly 
threatened  to  take  her  life ;  that,  in  consequence  of  the  cruel 
and  inhuman  treatment  and  threats  aforesaid,  and  such  conduct 
as  to  render  it  unsafe  for  her  to  live  with  or  remain  near  him, 

your  oratrix  was  obliged,  on  the  said day  of,  etc.,  to  leave 

the  house  of  the  defendant,  and  seek  refuge  with  her  friends, 
since  which  time  she  has  not  dared  to  return  to  the  defendant's 
house,  or  live  with  him. 

Your  oratrix  further  represents,  that  the  defendant  is  seized 
and  possessed  of  real  and  personal  estate  to  about  the  amount 

of dollars;  and  that  his  annual  income  is  at  least 

dollars ;  and  he  is  a  strong,  healthy  man,  and  abundantly  able 
to  take  care  of  and  support  his  family  ;  but  he  has  refused,  and 
neglects  to  provide  for  the  support  and  maintenance  of  your 
oratrix ;  that  your  oratrix  has  no  property  or  income  of  her 
own,  and  is  now  entirely  dependent  upon  the  charity  of  her 
friends  for  support. 

Forasmuch,  therefore,  as  your  oratrix  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity,  and  to  the  end  that 
the  said  C.  B.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut 
not  under  oath^  the  answer  under  oath  heing  hereby  wained ; 
that  the  defendant  may  be  compelled  to  make  a  proper  and 
suitable  provision  for  the  separate  maintenance  and  support  of 
your  oratrix  and  the  said  children,  according  to  the  statute  in 
such  case  made  and  provided ;  and  that  your  oratrix  may  have 


SEPARATE  MAINTENANCE.  629 

Defenses  to  —  Practice  in,  and  Decrees. 

the  care,  custody  and  education  of  the  said  children  of  said 
marriage ;  and  that  your  oratrix  may  have  such  other  and 
further  relief  in  the  premises  as  equity  may  require,  and  to 
your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sherilt'  of  the  said  county  of , 

commanding   him  that  he  summon  the   defendant  C.  B.  to 

appear  before  the  said  court,  on  the  1st  day  of  the  next 

term  thereof,  to  be  held  at  the  court  house  in  ,  in  the 

county  of ,  aforesaid,  and  then  and  there  to  answer  this 

bill,  etc. 


SECTION  III. 

DEFENSES   TO. 

The  same  defenses  that  are  applicable  to  a  suit  for  a  divorce, 
apply  to  proceedings  of  this  nature.  (J) 

SECTION  IV. 

PRACTICE   IN,  AND   DE0EEE8. 

The  statute  makes  no  provision,  as  in  suits  for  divorce,  re- 
quiring a  trial  by  jury.  The  case  is,  therefore,  to  be  disposed 
of  according  to  the  usual  practice  in  chancery  suits. 

Reference  to  master. — The  court  may  order  a  reference  to  the 
master  to  take  proof  of  the  matters  alleged  in  the  bill,  so  far  as 
they  are  controverted.  And  it  would  seem  to  be  the  general 
practice  in  like  cases  to  direct  the  master  to  take  proof,  and 
report  upon  the  situation  and  circumstances  in  life  of  the  re- 
spective parties,  to  enable  the  court  to  make  a  proper  decree  in 
reference  to  the  amount  of  allowance  to  be  made  to  the  wife. 
If  the  facts  are  sufficiently  before  the  court,  no  order  of  refer- 
ence is  necessary.  (^) 

An  allowance  may  be  decreed  by  the  court,  without  referring 

(j)    See  ante,  p.  508. 

(&)  Hammond  vs.  Hammond,  1  Clarke,  151 ;  Monroy  vs.  Monroy,  1  Edw. 
Ch.  382. 

34 


630  SEPARATE   MAINTENANCE. 

Reference  to  Master  —  Report,  of,  etc. 

the  matter  to  the  master,  where  neither  party  requests  a  refer- 
ence. {1} 

No.  195.     Order  of  reference  to  master  to  talcs  proof,  etc. 

{^Caption,  and  title  of  cause  as  in  No.  79,  suite,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answer  thereto,  and  the  replication  of  the 
complainant  to  such  answer ;  on  motion  of  the  solicitor  for  the 
complainant,  the  defendant's  solicitor  having  been  heard  in 
opposition  thereto,  it  is  ordered  that  this  cause  be  referred  to 
the  master  in  chancery  of  this  court,  to  take  the  proofs  of  the 
respective  parties ;  that  the  said  master  first  give  notice  to  the 
said  parties  respectively,  of  the  time  and  place  when  and  where 
such  proofs  will  be  taken  ;  and  cause  to  come  before  him  such 
witnesses  as  the  respective  parties  may  desire,  and  as  he  may 
deem  necessary,  and  to  examine  them  severally  on  oath,  and 
reduce  their  testimony  to  writing  and  report  the  same,  together 
with  his  conclusions  thereon  to  the  court. 

It  is  further  ordered,  that  the  said  master  inquire  and  report 
as  to  the  value  of  the  defendant's  estate  at  the  time  of  the  com- 
mencement of  this  suit,  and  the  situation  and  circumstances  of 
the  respective  parties ;  and  what  would  be  a  reasonable  sum  to 
be  allowed  to  the  complainant  for  her  support  and  maintenance, 
and  tlie  support  and  maintenance  of  such  of  the  children  of  the 
marriage  as  reside  with  her;  and  that  he  also  inquire  and 
report  as  to  the  time  and  manner  in  which  said  sums  should 
be  paid  to  the  complainant. 

No.  196.     Report  of  master  as  to  the  evidence  and  allowam.ce. 

{Title  of  cause,  address,  etc.,  as  in  No.  75,  ante,  pa^e  184-.) 

In  pursuance  of  an  order  of  this  court,  in  the  above  entitled 
cause,  dated  on,  etc.,  whereby  it  was  referred  to  me,  the  under- 
signed, master  in  chancery  of  the  court,  to  take  the. proof  of 
the  respective  parties,  and  report  the  same  to  the  court ;  and 
to  inquire  and  report  as  to  the  value  of  the  defendant's  estate  at 
the  time  of  the  commencement  of  the  said  cause ;  and  the 
situation  and  circumstances  of  tlie  respective  parties  ;  and  what 
would  be  a  reasonable  sum  to  be  allowed  to  the  complainant 
for  her  support  and  maintenance,  and  the  support  and  mainte- 
nance of  such  of  the  children  of  the  marriage  as  reside  with 
her ;  and  also  as  to  the  time  and  manner  in  which  said  sums 

(I)  Miller  vs.  3fiUer,  Saxton,  N.  J.  386. 


SEPARATE   MAINTENANCE.  531 

Report  of  Master  —  Amount  of  Allowance. 

should  be  paid  to  the  complainant ;  I,  the  said  master,  do 
report : 

That  having  given  notice  to  the  parties  respectively  of  the 
time  and  place  when  and  where  the  testimony  wonld  be  taken, 
and  having  been  attended  by  the  solicitors  for  the  complainant 
and  defendant,  and  having  caused  to  come  before  me  all  such 
witnesses  as  the  respective  parties  desired  or  made  known  to 
me,  I  did,  on,  etc.,  at,  etc.,  proceed  to  take  the  proofs  of  the 
respective  parties;  and  the  several  witnesses  attending  having 
been  severally  sworn,  and  examined  by  me,  touching  the  mat- 
ters aforesaid,  I  reduced  their  testimony  to  writing,  and  have 
attached  the  same  hereto,  and  make  the  same  a  part  of  this 
report. 

I  would  further  report,  that  in  my  opinion  the  complainant 
is  entitled  to  a  decree  for  separate  maintenance,  against  the 
defendant,  for  the  causes  set  forth  in  her  bill  of  complaint ;  and 

that  the  defendant  has  real  estate  of  the  value  of  about 

dollars,  the  yearly  income  of  which  is  about dollars  ;  that 

the  whole  personal  property  of  the  defendant  consists  of,  etc., 

and  its  value  is  about dollars.     That  two  children  of  the 

complainant  and  defendant  live  with,  and  are  entirely  sup- 
ported by  the  complainant,  one  being  a  boy,  aged years, 

and  the  other  a  girl,  aged years. 

I  further  report  that,  in  my  opinion,  the  sum  of dollars 

a  year,  payable  monthly,  is  a  suitable  allowance  for  the  present 
separate  maintenance  of  the  complainant ;  that  it  ought  to  be 
payable  from  the  commencement  of  this  suit ;  that  such  allow- 
ance be  made  subject  to  be  increased  or  decreased  in  the  future 
as  circumstances  may  be  shown  to  require ;  that  my  fees  herein 
amount  to dollars. 

All  of  which  is  respectfully  submitted. 

Dated,  etc.  Master  in  Chancery. 

Amount  of  allowance. — It  is  the  duty  of  the  master  to  take 
proof  of  the  pecuniary  circumstances  of  the  husband,  and  of 
the  condition  in  life  and  pecuniary  necessities  of  the  wife  and 
any  children  she  may  have  to  support,  in  order  to  fix  the 
amount  which,  in  his  opinion,  is  proper  to  be  contributed 
by  the  husband  for  her  support  weekly,  monthly,  or  other- 
wise. 

This  amount  should  be  fixed  with  reference  not  only  to  the 
husband's  property  and  income,  but  also  the  claims  of  his  chil- 
dren and  others  upon  him  for  sustenance  and  education,  and 


532  SEPARATE  MAINTENANCE. 

Amount  of  Allowance. 

his  ability  to  provide  for  himself  and  family  by  his  own  exer- 
tions. [771) 

The  allowance,  pending  the  suit,  is  always  much  smaller 
in  proportion  than  that  which  is  assigned  to  the  wife  as  a 
permanent  j)rovision  after  she  has  established  her  right  to 
a  separation,  (n) 

It  is,  in  general,  limited  to  the  actual  M^ants  of  the  wife  until 
the  result  of  the  suit  in  her  favor  establishes  her  right  to  a 
more  liberal  allowance,  and  it  will  be  estimated  according  to 
the  expense  of  board  and  clothing  at  the  place  where  her  rela- 
tions reside,  if  she  select  that  as  the  place  of  her  residence, 
unless  the  expense  of  living  there  is  disproportioned  to  the 
property  of  her  husband.  (<?) 

The  poverty  of  the  husband,  though  no  reason  for  refusing 
to  order  an  allowance,  is  to  be  considered  with  the  circum- 
stances in  life  of  the  parties,  in  fixing  the  amount,  (p)  Even 
if  he  has  no  property,  and  depends  merely  upon  his  labor  for 
support,  he  may  be  compelled  to  apply  a  part  of  his  daily 
earnings  to  this  purpose,  {q) 

Where  a  separation  is  decreed,  and  the  wife's  conduct  is 
blameless,  an  allowance  equal  to  what  the  law  gives  her  on 
the  death  of  her  husband  is  reasonable,  {r)  Thus,  in  a  judg- 
ment for  separation  on  the  ground  of  abandonment,  a  provision 
that  the  wife  have  the  use  of  one-third  of  his  real  estate  during 
her  life,  and  the  same  proportion  of  his  personal  estate  abso- 
lutely, was  held  to  be  proper,  {s) 

When  the  property  is  not  sufficient  for  the  support  of  all 

(m)  Lawrence  vs.  Lawrence,  3  Paige,  Ch.  267 ;  Atuos  vb.  Amos,  3  Green, 
N.  J.  Ch.  171 ;  Turner  vs.  Turner,  44  Ala.  437. 

(72.)   lb. ;  Morrell  vs.  Morrell,  2  Barb.  S.  C.  R.  480. 

(o)  Germond  vs.  Germoyid,  4  Paige,  Ch.  643 ;  Burr  vs.  Burr,  10  Paige, 
Ch.  20. 

ip)  Hallock  vs.  Hallock,  4  How.  N.  T.  160. 

{q)  lb. ;  Eirly  vs.  Kirhy,  1  Paige,  Cli.  261 ;  Prince  vs.  Prince,  1  Rich.  S. 
C.  Ch.  282 ;  sec  Bailey  vs.  Bailey,  21  Gratt.  Va.  43. 

(r)  Thornberry  vd.  Thornherry,  4  Litt.  252 ;  Peckford  vs.  Peckford,  \ 
Paige,  Ch.  274;  Burr  vs.  Burr,  7  Hill,  Ch.  207. 

(«)  Fishli  vs.  Fi»hli,  2  Litt,  337 ;  Miller  vs.  Miller,  6  Johns.  Ch.  91 ;  Bwrr 
VB.  Burr,  10  Paige,  Ch.  20. 


SEPARATE   MAINTENANCE.  533 

Decree  for  Separate  Maintenance. 

dependent  upon  it,  and  the  parties  have  been  accustomed  to 
relj  upon  joint  labor  for  support,  the  allowance  ought  not  to 
be  so  large  as  to  relieve  the  wife  from  all  necessity  for  doing 
anything  for  her  own  support,  (t) 

In  adjudging  the  amount  of  allowance,  the  husband's  estate 
will  be  presumed  to  yield  a  reasonable  income,  unless  the  con- 
trary be  shown,  with  a  sufficient  reason  for  its  unproductive- 
ness ;  and  the  reduction  of  the  husband's  estate  by  gifts  cannot 
be  allowed  to  diminish  the  wife's  alimony,  {u) 

Modification  of  alloivance. — The  allowance  in  the  final 
decree  is  subject  to  modification  from  time  to  time,  and  leave 
fihould  be  given  in  the  decree  to  apply  for  such  modification  as 
the  changing  circumstances  of  the  parties  may  render  just,  (-y) 

Wo.  197.     Decree  for  a  separate  maintenance. 

{Caption^  and  title  of  cause  as  in  Wo.  79,  unte,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answer  of  the  defendant  thereto,  the  replica- 
tion of  the  complainant  to  such  answer,  and  the  proofs  taken 
in  this  cause,  and  the  report  of  the  master  in  chancery  filed 
lierein,  which  said  report  is  hereby  approved  and  confirmed ; 
and  the  court  having  heard  the  arguments  of  the  counsel  for 
the  respective  parties,  and  being  fully  advised  in  the  premises, 
doth  find  that  the  allegations  in  the  said  bill  contained  are 
true,  as  therein  stated ;  and  that  the  equities  of  this  cause  are 
with  the  complainant. 

It  is  therefore  ordered,  adjudged  and  decreed,  by  the  court, 
that  the  complainant  is  entitled  to  a  separate  maintenance  from 
the  defendant ;  and  that  she  be  allowed,  and  that  the  defend- 
ant do  pay  to  the  complainant,  the  sum  of dollars  a  year, 

commencing  from  the  date  of  the  filing  of  the  complainant's 
bill  of  complaint  heroin,  to  wit,  from,  etc.,  and  that  the  said 
sum  be  paid  in  monthly  installments  of dollars  each,  pay- 
able in   advance,   on   the  day  of  each  and  every  month, 

until  the  further  order  of  the  court ;  and  it  is  further  ordered, 

{t)    Broken  vs.  Brown,  22  Mich.  242. 

{u)    Forrest  vs.  Forrest,  5  Bosw.  672. 

(■»)  Forrest  vs.  Forrest,  3  Abbott,  N.  Y.  144 ;  Lockridge  vs.  Lockridge,  2  B. 
Monr.  258  ;  Rogers  vs.  Vines,  6  Ired.  Eq.  293  ;  WhecUr  vs.  Wheeler,  18  111.  89 ; 
Waldron  vs.  Waldron,  5  P.  F.  Smith,  Pa.  281  ;  Fisher  vs.  FisJier,  32  Iowa,  20. 


534  SEPARATE  MAINTENANCE. 

Decree  for  Separate  Maintenance. 

adjudged  and  decreed,  that  this  decree  be  and  remain  a  lien 
on  the  real  estate  of  the  defendant  imtil  he  shall  have  given 
security  for  its  faithful  performance,  to  the  satisfaction  of  the 
court  or  to  the  complainant,  and  that  the  defendant  pay  the 
costs  of  this  suit ;  and  in  case  of  default  in  the  payment  of 
the  said  instalments  of  money  as  the  same  become  due,  or 
the  costs  herein,  that  execution  issue  thereon ;  and  tliat  either 
party  be  at  liberty  to  apply  to  the  court  as  circumstances 
may  require. 

See  decree  for  alimony  in  suits  for  divorce,  No.  193,  cmie, 
page  523. 


CHAPTER  XXXIY. 

BILLS  TO  QUIET  TITLE. 

Section  1.    When  Proper,  and  Nature  of. 

2.  Forms  op  Bills. 

3.  Form  of  Decree. 

SECTION  I. 
WHEN   PKOPEE,    AND   NATURE   OF. 

The  50th  section  of  the  Chancery  Practice  Act,  of  Illinois,  in 
force  July  1,  1872,  provides, 

"  The  court  may  hear  and  determine  bills  to  quiet  title,  and 
to  remove  clouds  from  the  title  to  real  estate,  whether  the 
lands  in  controversy  are  improved  or  unoccupied,  or  unim- 
proved or  unoccupied  ;  and  the  taking  possession  of  such  lands^ 
after  the  commencement  of  suit  by  the  party  claiming  the  title 
or  the  adverse  title,  or  any  one  under  or  through  such  person 
or  persons,  shall  not  in  anywise  aifect  the  complainant's  right 
to  a  final  decree  upon  his  bill."  {a) 

This  is  the  act  of  1869,  re-written.  (5) 

Prior  to  the  statute  above  referred  to,  it  was  always  held 
that  a  bill  to  quiet  title  would  not  lie  where  the  complainant 
had  a  remedy  at  law,  or  could  maintain  ejectment,  (c)  But 
such  bills  were  proper  where  the  complainant  was  in  posses- 
sion, {d)  accompanied  by  title,  to  remove  a  cloud  upon  such 
title.  \e) 

{a)    Rev.  Stat.  (18T4)  204;  Rev.  Stat.  (1877)  189;  see  Sea  vs.  Morehouse,. 
79  111.  2 IG;  Brooks  vs.  Kerns,  86  111.  547. 
{h)    Laws  of  111.  18G9,  p.  356. 

(c)  Alton  M.  d-F.  Co.  vs.  Bxckmasfer,  13  III.  201;  Kennedy  \&.  Nortliup,. 
15  111.  148, 152;  Synith  vs.  McConneU,  17  Til.  135;  TF/n^  vs.  Sherrer,  77  111.  200.. 

(d)  Stout  vs.  Cook,  37  111.  283  ;  Conway  vs.  Cable,  37  111.  82  ;  Morris  vs. 
Hogle,  37  111.  153;  Fitts  vs.  Bams,  42  111.  .391;  McFadden  \s.WortMngton, 
45  111.  363  ;  Christie  vs.  Bale,  46  111.  117  ;  Rvcker  vs.  Boolep,  49  111.  378  :  Car- 
roll vs.  Safford,  3  How.  U.  S.  459  ;  Scott  vs.  Onderdonk,  14  N.  Y.9  ;  BatchyB, 
Buffalo,  38  N.  Y.  276 ;  Orten  vs.  S?nith,  18  N.  H.  263. 

(e)  Bayerque  vs.  CoJien,  \  McAllister,  113  ;  Overman  vs.  Parker,  Hemp.. 
692;  see  Collms  vs.  Collins,  19  Ohio  St.  R.  468;  Hardin  vs.  Jones,  86  111.  313.. 


536  BILLS   TO   QUIET   TITLE. 

Nature  of,  and  when  Proper. 

A  court  of  equity  has  jurisdiction  to  set  aside  a  title  pro- 
cured by  fraud;  {/)  or  to  establish  an  equitable  title  of  the 
complainant,  where  the  defendant  is  in  possession  under  a  legal 
title.  (^) 

A  bill  to  quiet  the  title  to  lands,  will  not  lie  by  one  in  pos- 
session, who  does  not  tirst  show  some  right,  legal  or  equit- 
able. (A) 

The  jurisdiction  of  equity  to  quiet  title  is  intended  to  reach 
persons  out  of  possession,  who  cannot  be  compelled  to  defend 
their  right  at  law.  {i) 

The  rule  seems  to  be,  in  cases  of  bills  to  remove  clouds  upon 
titles,  that  where  the  claim  of  an  adverse  party  to  land  is  valid 
upon  the  face  of  the  instrument,  or  the  proceedings  sought  to 
be  set  aside,  and  it  requires  the  establishment  of  extrinsic  facts 
to  show  the  supposed  conveyance  to  be  inoperative  and  void,  a 
court  of  equity  may  interfere  to  set  it  aside  as  a  cloud  upon  the 
real  title  to  the  land,  and  order  the  same  to  be  delivered  up 
and  canceled,  {j) 

A  bill  in  equity  which  states  only  a  pretended  title  in  the 
defendant,  and  prays  for  relief  against  it  on  the  ground  of  an 
apprehended  injury,  cannot  be  maintained,  ijc)  But  it  need 
not  show  that  the  claim  set  up  by  the  defendant  is  one  which 
would  he,  prima  facie  good  at  law;  nor  need  it  set  forth  the 
ground  upon  which  the  defendant  asserts  the  validity  of  his 
title.  {I) 

if)  Nelson  vs.  RochweU,  14  111.  375 ;  Kennedy  vs.  Northup,  15  111.  152. 

(gr)    Shay  vs.  Norton,  48  111.  105,  106,  and  cases  there  cited. 

{h)  Stark  vs.  Starr,  6  Wallace,  402 ;  Kings  vs.  French,  5  Chicago  Legal 
News,  470 ;  Hopkins  vs.  Granger,  52  111.  504 ;  West  vs.  Schnehly,  54  111.  523 ; 
Eoa/r  vs.  Harris,  11  111.  24;  Bowles  vs.  Mc Allen,  16  111.  30. 

(t)    Barron  vs.  Bobbins,  23  Mich.  22 ;  see  King  vs.  Higgins,  8  Oregon,  406. 

(/)  Reed  vs.  Tyler,  56  111.  288  ;  Hamilton  vs.  Ciimmings,  1  Johns.  Ch.  517  ; 
Pettit  vs.  Shepherd,  5  Paige,  Ch.  493  ;  Piersall  vs.  Elliott,  6  Pet.  95 ;  Ward 
vs.  Dewey,  16  N.  Y.  519  ;  Goulson  vs.  City  of  Portland,  1  Deadj,  481 ;  Fonda 
vs.  Sage,  48  N.  T.  173 ;  Mulligan  vs.  Baring,  3  Daley,  N.  T.  75  ;  Crooke  vs. 
■Andrews,  40  N.  Y.  547. 

(A;)    Torrent  vs.  Booming,  23  Mich.  354 

(Z)    Holhrook  vs.  Winson,  23  Mich.  394. 


BILLS   TO   QUIET   TITLE.  537 

Nature  of,  and  when  Proper. 

Where  land  has  been  laid  out  in  town  lots,  and  the  occu- 
pants are  threatened  with  numerous  suits,  a  bill  will  lie  to  quiet 
the  title,  though  each  of  tlie  complainants  mav  have  a  legal 
title,  and,  therefore,  an  adequate  remedy  at  law.  (w.) 

Under  tlie  right  conferred  by  the  statute,  a  bill  of  peace  will 
lie  against  a  number  of  parties  having  distinct  claims,  to  quiet 
the  complainant's  title  to  lands  granted  by  act  of  congi-ess.  (n) 

Where  a  written  proposition  for  the  sale  of  lauds  Avitliout 
consideration  and  not  under  seal,  was  delivered  by  the  owner 
thereof  to  another,  but  which  offer  of  sale  was  not  accepted  by 
the  latter  so  as  to  be  binding  upon  the  former,  and  the  vendee 
afterwards  wrote  upon  the  same  an  acceptance  of  the  offer,  and 
caused  the  proposal  and  acceptance  to  be  recorded  in  the 
recorder's  office  of  the  county  in  which  the  land  was  situated, 
in  violation  of  a  pledge  to  the  contrary,  and  in  fraud  of  the 
rights  of  the  vendor,  the  instrument,  as  it  stood  upon  the 
record,  was  regarded  as  a  cloud  upon  the  title  of  the  latter, 
which,  upon  a  bill  filed  for  the  purpose  by  the  vendor  against 
the  vendee  and  his  assignee,  who  had  notice  of  the  facts,  a 
court  of  chancery  would  take  jurisdiction  to  remove  the  cloud 
upon  the  title,  (o) 

A  bill  in  equity  to  quiet  title  will  lie  in  lavor  of  an  occu- 
pant of  part  of  a  house  against  one  who,  having  entered 
another  part  by  the  complainant's  permission,  remains  there, 
claiming  title  to  the  whole  house  under  a  deed  alleged  by  the 
plaintiff  to  be  a  forgery,  (p) 

Where  a  grantor  in  possession  asserts  that  the  deed  was 
intended  as  a  mortgage,  the  grantee  may  maintain  a  bill  to 
quiet  title,  unless  the  grantor  has  the  legal  title  and  no  inter- 
vention of  equities  renders  the  remedy  at  law  incomplete,  (q) 

Although  a  sale  of  a  house  situated  on  leased  ground,  owned 
and  occupied  as  a  homestead,  under  an  execution,  confers  no 

(m)  Cretvs  vs.  Bitrcham,  1  Black,  U.  S.  352;  see  Gage  vs.  Chapman.  56 
111.  311. 

(h)    Central  Pacific  R.  R.  Co.  vs.  Dyer,  1  Sawyer,  641. 

(o)     Larmon  vs.  Jordon,  56  111.  204;  Brizzolara  vs.  Mosher,  71  111.  41. 

{p)  SitUica}i  vs.  Finnegaii,  101  Ma.-;s.  44T;  bee  Gould  vs.  SteiiibiO'/,  84 
111.  170. 

iq)    SJun/s  vs.  Norton.  48  111.  TOO. 


538  BILLS   TO    QUIET   TITLE. 

Nature  of,  and  when  Proper. 

title,  still,  it  being  a  cloud  on  the  title,  equity  will  take  juris- 
diction to  remove  the  cloud,  especially  when  the  purchaser 
under  the  execution  is  in  possession,  and  threatens  to  remove 
the  house,  and  thus  commit  waste,  {r) 

"Where  a  sheriff,  who  was  interested  in  a  cause,  was  improp- 
erly allowed,  after  his  term  of  office  had  expired,  to  amend  the 
return  upon  the  summons  therein,  so  as  to  obviate  an  objection 
as  to  the  jurisdiction,  and  it  appearing  he  was  insolvent,  a  court 
of  equity  had  jurisdiction  upon  a  bill  filed  for  that  purpose,  to 
relieve  the  defendant,  in  the  original  proceeding,  from  the  effect 
of  the  amended  return  —  the  same,  under  such  circumstances, 
being  fraudulently  made,  and  operating  as  a  cloud  upon  his 
title,  (s) 

In  a  bill  to  quiet  title  the  complainant  is  not  bound  to  show 
a  perfect  title  as  against  all  the  world,  {t) 

Equity  will  entertain  jurisdiction  at  the  instance  of  the  owner 
in  fee  of  lands  to  remove  a  cloud  upon  his  title  created  by 
a  sale  of  the  premises,  and  a  deed  thereto  under  a  decree  of 
foreclosure  of  a  mortgage  thereon,  although  the  decree  and 
deed  as  to  him  are  void,  he  not  having  been  served  with  process 
in  the  foreclosure  suit,  and  although  the  land  is  not  chargeable 
with  the  mortgage  by  reason  of  the  same  not  having  been 
recorded,  and  because  he  had  no  notice  of  its  existence  at  the 
time  he  purchased,  (u) 

Although  the  levy  and  sale,  and  deed  in  pursuance  of  them, 
are  void  for  uncertainty,  yet  when  the  defendant  claims  title 
under  them,  a  court  of  chancery  will  render  a  decree  quieting 
the  title,  [v) 

A  conveyance  by  virtue  of  a  void  decree,  though  of  no  effect, 
is  still  a  cloud  on  the  title  which  a  court  of  equity  will  take 
cognizance  of  and  remove,  {w)     And  although  parties  claiming 

(r)    Co-nklin  vs.  Foster,  57  111.  104. 

(«)    0' Conner  vs.  Wilson,  57  111.  226. 

{t)    Rucker  vs.  Dooley,  49  111.  377. 

(w)  Eodgen  vs.  Outtery,  58  111.  431. 

(«)    Stout  vs.  Cook,  37  111.  283. 

(w)  Campbell  vs.  McCanhan,  41  111.  46  ;  Johnson  vs.  Johnson,  30  111.  215 ; 
Morris  vs.  Ho(/le,  37  111.  150;  Groves  vs.  Webber,  72  111.  606;  Emmons  vs. 
Moore,  85  111.  304. 


BILLS   TO   QUIET   TITLE.  539 

Nature  of,  and  wlien  Proper. 

under  a  void  sheriff's  deed  had  no  right  to  the  land,  yet  it  was 
such  a  cloud  on  the  owner's  title,  as  would  warrant  a  court  of 
equity  in  entertaining  a  bill  for  its  removal,  (a?) 

On  a  bill  to  quiet  title,  where  it  is  alleged  that  a  sheriff's 
deed,  executed  to  the  defendant,  is  a  cloud  upon  such  title,  it 
will  be  proper,  the  facts  warranting  it,  to  quiet  the  title  of  the 
complainant  by  setting  aside  the  sheriff's  deed,  but  the  court 
should  not  decree  a  conveyance  by  a  holder  of  such  deed  to  the 
complainant,  {y) 

Before  the  statute  to  which  we  have  referred,  it  was  held  in 
Illinois,  that  a  court  of  equity  would  not  inquire  into  the 
validity  of  a  tax  sale,  merely  to  determine  whether  it  is  a 
cloud  on  the  legal  title,  and  to  enjoin  the  holder  from  asserting 
it.  It  was  held  solely  in  the  province  of  a  court  of  law  to  try  its 
validity,  (s)  But  it  is  now  held  that  a  part}^  in  possession  of 
land  may  maintain  a  bill  in  chancery  against  one  out  of  pos- 
session, to  set  aside  as  invalid,  and  a  cloud  upon  complainant's 
title,  a  sale  of  the  land  for  taxes  and  a  deed  thereunder,  {a) 

In  the  case  of  a  tax  certificate,  issued  upon  an  illegal  sale  of 
land  for  taxes,  a  court  of  equity  will  take  jurisdiction  to  aimul 
the  sale  and  cancel  the  tax  certificate,  and  thus  remove  a  cloud 
upon  the  title  to  the  land,  (h) 

In  a  proper  case  the  court  will  only  set  aside  the  tax  sale, 
upon  condition  that  all  the  taxes  paid  by  the  party  claiming 
under  the  tax  sale  should  be  refunded  to  him.  (c) 

A  court  of  equity  has  power  to  remove  a  cloud  upon  the 
title  of  a  party  in  possession  of  land,  claiming  to  be  the  owner, 
such  cloud  arising  upon  a  collector's  deed  on  a  sale  for  taxes, 
when  the  taxes  had  been,  in  fact,  paid  before  sale,  {d) 

[x)   Fitis  vs.  Davis,  42  111.  391;  ConiceU  vs.  Walkins,  71  111.  488. 

(//)    Backer  vs.  Dooley,  49  111.  377. 

[z)    Hamilton  vs.  Quigley,  46  111.  90;  Springer  vs.  Rosette,  47  111.  223. 

(a)  Reed  vs.  Tgler,  56  111.  288;  Gage  vs.  Chapman,  Id.  311;  Gage  vs.  Bil- 
lings, Id.  268;  Gage  vs.  Rohrback,  Id.  262;  see  Whitney  vs.  Stephens,  77  111. 
585. 

(h)  Gage  vs.  Chapman,  56  111.  311;  Reed  vs.  Tyler,  Id.  288;  sec  Gag2  vs. 
Rohrback,  56  111.  262;  Gage  vs.  Billings,  lb.  268. 

(c)    Reed  vs.  Tyler,  56  111.  288;  Phelps  vs.  Harding,  87  III.  442. 

id)    Gage  vs.  Billings,  56  III.  268. 


540  BILLS   TO   QUIET   TITLE. 

Form  of  Bill  to  Cancel  Deed. 

SECTION  II. 

FORMS    OF    BILLS. 

* 

iVb.  198.     Bill  to  quiet  title  and  to  cancel  deed. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A,  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc..  one  E.  F.,  late  of,  etc.,  now  deceased,  being 
the  owner  in  fee  simple  of  the  following  described  i^eal  estate, 
to  wit:  {Here  descrihe  the  same^  by  his  deed  of  that  date, 
duly  executed  and  acknowledged,  conveyed  the  said  described 
premises  to  one  G.  H.,  of,  etc. ;  and  that  afterwards,  on,  etc., 
the  said  G.  H.,  by  his  deed  of  that  date,  duly  executed  and 
acknowledged,  conveyed  the  said  premises  to  B.  B.,  late  of, 
etc.,  but  now  deceased,  the  father  of  your  orator. 

Your  orator  further  represents,  that  on,  etc.,  the  said  B.  B. 
departed  this  life,  intestate,  leaving  your  orator  his  only  heir 
at  law,  by  means  whereof  your  orator  became,  and  now  is,  the 
owner  in  fee  of  the  said  premises. 

Your  orator  further  represents,  that  up  to  and  at  the  time  ol 
the  conveyance  from  the  said  G.  H.  to  the  said  B.  B.  the  said 
premises  were  vacant  and  unoccupied ;  that  soon  after  your 
orator's, father  purchased  said  lands  he  took  possession  and 
commenced  the  improvement  of  the  same,  and  the  said  premises 
are  now  in  a  full  state  of  cultivation,  with  a  valuable  dwelling- 
house,  barn,  and  other  improvements  thereon ;  and  that  the 
same  have  been  in  the  actual  use,  occupation,  and  possession  ot 
the  said  B.  B.  and  your  orator  ever  since  the  said  purchase  by 
the  said  B.  B.  from  the  said  G.  H. 

Your  orator  further  represents,  that  all  the  said  deeds  of  con- 
veyance, except  tlie  deed  from  the  said  E.  F.  to  the  said  G.  H., 
were  duly  recorded  in  the  recorder's  office  of  said  county  soon 
after  the  same  were  executed  and  delivered  ;  that  the  said  deed 
of  conveyance  from  the  said  E.  F.  to  the  said  G.  H.,  by  some 
accident  or  oversight  on  the  part  of  the  said  G.  H.,  was  not 
recorded  until,  etc. ;  and  that  one  J.  K.,  the  defendant  herein- 
after named,  who  is  a  speculator  in  lands  and  defective  titles, 
discovered,  by  some  means,  that  there  was  no  deed  on  record 
from  the  said  E.  F.  deceased,  and  that  there  was  a  link  want- 
ing in  the  chain  of  your  orator's  title  to  said  premises,  well 
knowing  that  your  orator  was  in  the  possession  of  the  same, 
claiming  title  thereto  in  fee,  on,  etc.,  made  application  to  D.  F. 


BILLS   TO   QUIET   TITLE.  541 

Form  of  Bill  to  Set  Aside  Tax  Deed. 

and  C.  F.,  the  sons  and  only  heirs  at  law  of  the  said  E.  F., 
deceased,  as  it  is  claimed,  the  said  E.  F.  then  having  been 
dead  for  a  long  S])ace  of  time,  and,  by  some  means  or  repre- 
sentations, procured  a  quit-claim  deed  of  conveyance  from  the 
said  D.  F.  and  C.  F.  as  tlie  heirs  at  law  of  the  said  E.  F.,  for 
the  said  described  premises ;  and  on,  etc.,  filed  the  same  for 
record  in  the  recorder's  office  in  said  county,  and,  by  reason  of 
his  said  deed  being  first  of  record,  and  in  order  to  aimoy  and 
vex  your  orator  in  tlie  premises,  now  sets  up  and  claims  title 
to  the  said  lands  as  against  your  orator,  but  refuses  to  com- 
mence a  suit  at  law  against  your  orator  to  try  title  to  the  said 
premises. 

Your  orator  further  represents,  that  the  said  deed  of  convey- 
ance of  the  said  D.  F.  and  C.  F.  to  tlie  said  J.  K.,  by  reason  of  the 
same  having  been  first  placed  on  record  in  the  recorder's  office 
of  said  county,  is  a  cloud  upon  the  title  of  your  orator  in  said 
premises,  and  tends  to  depreciate  the  value  and  sale  thereof. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  J.  K.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut 
not  under  oath,  the  answer  under  oath  being  hereby  waived  / 
and  that  the  said  deed  of  conveyance  from  the  said  D.  F.  and 
C.  F.  to  the  said  J.  K.,  bearing  date  on,  etc.,  as  aforesaid,  of 
the  said  premises,  may  be  set  aside  and  declared  void  as 
against  your  orator,  as  a  cloud  upon  the  title  of  your  orator ; 
and  that  the  said  deed  may  be  delivered  up  to  be  canceled ; 
and  that  your  orator  may  have  such  other  and  further  relief  in 
the  premises  as  equity  may  require  and  to  your  honor  shall 
seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

cliancery,  directed  to  the  sheriff  of  the  said  county  of , 

commanding  him  that  he  summon  the  defendant  J.  K.  to 

appear  before  the  said  court,  on  the  1st  day  of  the  next 

term  thereof,   to  be  held  at  the  court  house  in ,  in  the 

county  of aforesaid,  then  and  there  to  answer  this   bill, 

etc. 

No.  199.     Bill  to  quiet  title,  and  to  set  aside  a  tax  deed. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  your  orator  is  the  owner  in  fee  simple  of  the  following 


542  BILLS   TO    QUIET   TITLE. 

Form  of  Bill  to  Set  Aside  Tax  Deed. 

described  real  estate,  to  wit :  [Here  describe  the  premises  /)  that 
he  derived  title  thereto  as  follows :  {Here  set  forth  the  chain 
of  title  /)  that  ever  since  your  orator  purchased  the  said  prem- 
ises as  aforesaid,  he  has  been,  and  is  now,  in  tlie  actual  pos- 
session thereof,  and  has  paid  all  the  taxes  assessed  thereon  as 
the  same  became  due  and  payable. 

Your  orator  further  represents,  that  for  the  year  18 — ,  there 
was  assessed  upon  the  said  premises  for  the  state  and  county 
taxes  for  that  year,  the  sum  of dollars,  which  said  assess- 
ment was  on,  etc.,  duly  paid  by  your  orator  to  E.  F.,  the  col- 
lector of  taxes,  in  and  for  the  township  of ,  that  being  the 

township  in  which  said  premises  are  situated ;  as  will  appear 
by  the  tax  receipt  therefor,  ready  to  be  produced,  a  copy  of 
which  is  hereto  attached,  marked  "  Exhibit  A,"  and  is  made  a 
part  of  this  bill  of  complaint. 

Your  orator  further  represents,  that  on,  etc.,  on«  G.  H.,  the 
county  treasurer  of  said  county,  filed  in  the  county  clerk's 
office,  of  the  county  aforesaid,  a  delinquent  list,  and  published 
notice  of  application  for  judgment,  in  which  said  delinquent 
list  and  notice  the  said  premises  were  not  included ;  and  he 
did  not,  with  the  county  clerk  of  said  county,  correct  .the  said 
delinquent  list,  and  make  the  affidavit  required  by  law,  on  the 
first  day  of  the  term  of  the  county  court  of  said  county ;  that, 
notwithstanding  the  defects  and  omissions  of  duty  as  aforesaid, 
and  that  the  taxes  on  the  said  premises  had  been  duly  paid  by 
your  orator  as  aforesaid,  the  said  county  treasurer  sued  for,  and 
on,  etc.,  obtained  a  judgment  and  precept  in  the  county  court 
aforesaid  against  the  said  premises,  and  afterwards,  on,  etc.,  at 
a  public  sale  of  lands  and  town  lots  for  the  taxes  due  and  re- 
maining unpaid  thereon  for  the  year  18 — ,  as  aforesaid,  sold 
the  said  premises  to  one  R.  S.,  and  issued  the  usual  certificate 
of  purchase  therefor ;  that  the  said  R.  S.  afterwards,  on,  etc., 
assigned  his  said  certificate  of  purchase  to  one  O.  P. ;  that 
afterwards,  on,  etc.,  upon  a  fraudulent  and  defective  affidavit 
of  tlie  said  O.  P.,  the  clerk  of  the  county  court  of  said  county, 
executed  a  deed  of  conveyance  to  the  said  O.  P. ;  and  that  the 
said  O.  P.  afterwards,  on,  etc.,  by  his  quit-claim  deed  of  that 
date,  conveyed  all  his  right,  title  and  interest  in  the  said  prem- 
ises, to  C.  1).,  of,  etc.,  the  defendant  hereinafter  named  ;  that 
the  said  tax  deed  to  the  said  O.  P.,  and  the  quit-claim  deed 
from  the  said  O.  P.  to  the  said  C.  D.,  were  filed  for  record  in 

the  recorder's  office  of  the  said  county  of ,  on,  etc.,  and 

duly  recorded  in  book of  deeds,  on  pages . 

Your  orator  further  represents,  that  he  had  no  notice  of  the 
said  premises  having  been  so  sold,  for  said  taxes,-  or  the  execu- 


BILLS   TO   QUIET   TITLE.  543 


Form  of  Bill  to  Set  Aside  Tax  Deed. 


tion  of  the  said  certificate  of  purchase,  or  the  niaking  of  the 
said  deeds  of  conveyance,  until,  etc. ;  and  that  as  soon  as  he 
learned  thereof,  he  called  upon  the  said  C.  D.  and  exl)ibited  to 
him  your  orator's  tax  receipt  as  aforesaid,  showing  that  said 
taxes  had  been  paid  by  your  orator,  and  the  said  sale  had  been 
erroneously  made,  and  demanded  of  the  said  C.  D.  that  he  exe- 
cute a  quit-claim  deed  for  said  premises  to  your  orator,  and  thus 
relieve  the  title  of  your  orator  in  the  said  premises  from  the 
cloud  cast  thereon  by  the  tax  sale  and  deeds  as  aforesaid,  v^^ith 
which  reasonable  request  in  that  behalf,  the  said  C.  D.  refused 
to  comply,  falsely  pretending  that  the  said  taxes  had  not  been 
paid,  and  that  the  judgment  for  taxes,  sale  and  deeds  were  in 
every  respect  regular  and  valid ;  and  claimed  to  have  a  valid 
title  to  said  premises,  but  declined  to  institute  a  suit  at  law 
against  your  orator  to  test  the  validity  of  his  title  to  said 
premises. 

Your  orator  further  represents,  that  the  said  tax  deed  to  the 
said  O.  P.,  and  the  quit-claim  deed  from  the  said  O.  P.  to  the 
said  0.  D.  are  clouds  upon  the  title  of  your  orator  in  the  said 
premises,  and  tend  to  depreciate  the  value  thereof,  and  ought, 
therefore,  to  be  set  aside  and  declared  null  and  void,  and  be 
delivered  up  to  be  canceled  under  the  direction  of  this  honor- 
able court. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in  the 
premises,  except  in  a  court  of  equity ;  and  to  the  end  that  the 
said  C.  D.,  who  is  made  party  defendant  to  this  bill,  may  be 
required  to  make  full  and  direct  answer  to  the  same,  hut  Tiot 
xmder  oatJi,  the  answer  under  oath  heing  herehy  waived i  and 
that  the  said  judgment  against  the  said  premises,  the  proceed- 
ings thereon,  the  tax  deed  to  the  said  O.  P.,  and  the  deed  from 
the  said  O.  P.  to  the  defendant  as  aforesaid,  may  be  set  aside 
and  declared  void  as  against  your  orator,  as  a  cloud  upon  the 
title  of  your  orator ;  and  that  the  said  deeds  may  be  decreed 
to  be  delivered  up  to  be  canceled ;  and  that  your  orator  may 
have  such  other  and  further  relief  in  the  premises  as  equity 
may  require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.  {Pray  jproeess  as  in  No. 
198,  ante,  page  S40.) 


544  BILLS   TO   QUIET   TITLE. 

Form  of  Bill  to  Set  Aside  a  Contract. 

No.  WO.     Bill  to  quiet  title  and  to  set  aside  a  contract  of 

sale,  {e) 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Tour  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  your  orator  is  seized  in  fee  simple  of  the  following 
described  real  estate,  to  wit :  {Here  insert  descrijjtioni)  that 
on,  etc.,  one  C.  D.,  of,  etc.,  one  of  the  defendants  hereinafter 
named,  applied  to  your  orator,  and  represented  that  he  was  the 
agent  of  the  Rock  River  College  Association,  and  as  such  was 
about  to  purchase  lands  in  the  vicinity  of  the  above  described 
premises,  and  obtained  from  your  orator  a  proposition  for  the 
sale  of  the  said  premises,  in  the  words  and  figures  following, 
to  wit : 

"  Chicago,  January  22,  1869. 

"  I  will  sell  to  C.  D.,  Sup't  Rock  River  College  Association, 

the  {Here  describe  the  'premises)  for dollars  per  acre,  one 

fourth  cash,  balance  one,  two  and  three  years,  with  interest  at 
eight  per  cent.  I  further  agree  to  wait  until  May  1,  1869,  for 
first  payment,  by  purchaser  giving  bond  with  approved  secu- 
rity for  payment,  with  interest  at  eight  per  cent,  as  above. 

A.  B." 

Tour  orator  further  r  ^presents,  that  the  said  C.  D.,  at  the 
time  of  the  making  of  such  proposition,  requested  your  orator 
to  give  him  ten  days'  refusal  upon  the  terms  mentioned  therein, 
which  your  orator  refused  to  do,  but  did  tell  him  that  if,  within 
the  next  ten  days  after  that,  he  received  an  ofier  to  purchase 
the  said  premises,  he  would  advise  the  said  C.  D.  of  such  offer 
before  selling  the  same. 

Tour  orator  further  represents,  that  your  orator  saw  the 
said  C.  D.  almost  daily  for  the  next  ten  days  after  the  making 
of  the  said  proposition ;  that  the  said  C.  D.  never  notified  your 
orator  during  that  time  of  any  acceptance  of  said  proposition ; 
and  that  afterwards,  on  the  30th  day  of  January,  1869,  your 
orator  and  the  said  C.  D.  met,  and,  by  mutual  consent,  the 
said  proposition  was  abandoned ;  that  afterwards,  on  the 
1st  day  of  February,  1869,  your  orator  contracted  to  sell  an 
undivided  half  of  the  said  premises  to  one  E.  F. ;  and  after- 
wards, on  the  10th  day  of  February,  1869,  your  orator  bound 
himself  to  convey  five  acres  of   the  said  premises  to  Cook 

(e)    Larmon  vs.  Jordan,  56  111.  204. 


BILLS   TO   QUIET   TITLE.  546 

Form  of  Bill  to  Set  Aaide  a  Contract. 

county,  for  the  purposes  of  a  Normal  school ;  that  on  the  8th 
day  of  the  same  month,  the  Park  bill  passed  one  branch  of  the 
legislature,  and  was  expected  to  pass  the  other  branch,  which 
would  greatly  enhance  the  value  of  said  premises ;  that  after- 
wards, on  the  17th  day  of  February,  18G9,  the  said  C.  D. 

applied  to  your  orator  and  offered  to  pay  him dollars, 

and  take  a  contract  for  the  sale  of  the  said  premises,  which 
offer  your  orator  declined,  aiid  declared  the  said  former  pro- 
posal abandoned. 

Your  orator  further  represents,  that  on  the  18th  day  of 
February,  1869,  the  said  C.  D.,  in  order  to  defraud  your  orator, 
and  to  compel  your  orator  to  make  sale  of  said  premises  to 
him  under  said  proposition,  wrote,  under  the  said  proposal,  the 
following  words,  to  wit :  "  The  above  proposal  accepted,  and 
notice  gi'ven  February  18,  1869.  C.  D."  And  afterwards,  on 
the  26th  day  of  March,  1869,  caused  the  said  proposal  and 
acceptance  to  be  recorded  in  the  recorder's  office  of  Cook 
county,  wherein  the  said  premises  were  situated. 

Your  orator  further  represents,  that  afterwards,  the  said 
C.  D.  assigned  the  said  proposal  to  one  .G.  H.,  of,  etc.,  another 
defendant  hereinafter  named,  who  now  pretends  to  hold  the 
same  as  a  valid  contract  with  your  orator. 

Your  orator  further  represents,  that  the  said  proposal,  with 
the  said  acceptance  thereunder  written,  and  recorded  as  afore- 
said, is  a  cloud  upon  your  orator's  title  in  the  said  premises, 
and  has  the  effect  to  greatly  depreciate  the  value  thereof,  and 
to  prevent  your  orator  from  making  sale  of  the  same. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.  and  G.  H.,  who  are  made  parties  defendants  to 
this  bill,  may  be  required  to  make  full  and  direct  answer  to  the 
same,  hit  not  under  oath,  the  answer  under  oath  ieing  hereby 
waived  I  and  that  the  said  supposed  contract  may  be  declared 
null  and  void,  and  as  a  cloud  upon  the  title  of  your  orator  may 
be  removed,  and  be  delivered  up  to  be  canceled ;  and  that  your 
orator  may  have  such  other  and  further  relief  in  the  premises 
as  equity  may  require,  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.     [Pray  process  as  in  No.. 
198,  ante,  page  54-0.) 
85 


646  BILLS   TO   QUIET   TITLE. 

Form  of  Decree. 


SECTION  II. 
FORM   OF    DECKEE. 

No,  ^01.     Decree  to  quiet  title  and  to  cancel  deed. 

{Ca/ption^  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of 
complaint  herein,  the  answer  thereto,  the  replication  of  the 
complainant  to  such  answer,  and  the  proofs  taken  in  said  cause, 
and  having  been  argued  by  counsel  for  the  respective  parties, 
and  the  court  having  duly  considered  the  same,  and  being  fully- 
advised  in  the  premises ; 

Doth  order,  adjudge  and  decree  that  the  said  deed  of  con- 
veyance from  the  said  D.  F.  and  C.  F.  to  the  defendant  J.  K., 
bearing  date  on,  etc.,  of  the  said  premises,  to  wit :  {Here 
describe  the  premises^)  and  recorded  in  the  recorder's  office  of 

the  said  county  of ,  be  and  the  same  is  hereby  set  aside 

and  declared  null  and  void,  as  against  the  complainant,  his 
heirs  and  assigns,  as  a  cloud  upon  the  title  of  the  complainant, 
and  that  the  defendant  J.  K.  do  deliver  up  the  said  deed  to  be 
canceled  by  the  clerk  of  this  court. 

It  is  further  ordered,  that  the  defendant  pay  the  costs  of 
this  suit,  to  be  taxed  by  the  clerk,  and  that  execution  issue 
therefor. 

On  a  bill  to  remove  a  cloud  upon  the  title  of  complainant, 
it  is  not  proper  for  the  court  to  decree  a  conveyance  of  the 
title,  alleged  to  be  a  cluud,  to  the  complainant.  It  is  sufficient 
for  the  court  to  remove  the  deeds  as  a  clond  and  no  more.  (/") 

(/)    Conwell  vs.  Watkins,  71  111.  488. 


CHAPTER  XXXV. 

BILLS    TO    SET    ASmE    WILLS. 

Section  1.  Nature  of,  and  When  Proper. 

2.  What  Necessary  to  Constitute  a  Valid  Will. 

3.  Fraud  in  Procuring  Execution  of  Will. 

4.  Want  of  Capacity  to  M^\:ke  a  Will. 

5.  Form  of  Bill. 

6.  Issue  of  Facts  to  be  Tried  by  a  Jury. 

7.  Decree. 

SECTION  I. 

NATURE    OF,    AND    WHEN    PKOPER. 

Parties  in  interest  may  contest  the  validity  of  a  will  by  a 
bill  in  chancery,  as  well  as  before  the  probate  court,  {a) 

The  7th  section  of  the  statute  of  wills  of  Illinois  provides, 
that  if  any  person  interested  shall,  within  three  years  after  the 
probate  of  a  will  or  codicil  in  the  county  court,  by  his  bill  in 
chancery,  contest  the  validity  of  the  same,  an  issue  at  law  shall 
be  made  up,  whether  the  writing  produced  be  the  will  of  the 
testator  or  not,  which  shall  be  tried  by  a  jury  in  the  circuit 
court  of  the  county  wherein  the  will  or  codicil  was  proven  and 
recorded,  according  to  the  practice  of  courts  of  chancery  in 
similar  cases ;  but  if  no  such  suit  shall  be  commenced  within  the 
time  aforesaid,  the  probate  shall  be  forever  binding  and  conclu- 
sive on  all  parties  concerned,  saving  to  infants,  J^emes  covert, 
persons  absent  from  the  state  or  non  compos  mentis,  the  like 
period  after  the  removal  of  their  respective  disabilities.  And 
in  all  such  trials  by  jury  the  certificate  of  the  oath  of  the  wit- 
nesses at  the  time  of  the  first  probate  shall  be  admitted  as 
evidence,  and  have  such  weight  as  the  jury  shall  think  it  may 
deserve. 

(a)    Duncan  va.  Duncan,  23  111.  264 ;  Flinn  vs.  Owen,  58  111.  111. 


648  BILLS   TO   SET   ASIDE   WILLS. 

What  Necessary  to  Constitute  a  Valid  Will. 

The  certificate  of  tlie  oath  of  the  witnesses  at  the  time  of  the 
first  probate  of  the  will  \s>  prima  facie  evidence  of  its  validity. 
This  testimony  raises  a  presumption  of  the  competency  of  the 
testator,  which  would  be  valid  until  disproved  by  counter  testi- 
mony, and  places  upon  the  contestants  the  burden  of  showing 
the  incompetency  of  the  testator  by  proof  sufficient  to  overcome 
i\iQ  prima  facie  case.  (Jb) 

The  burden  of  proof,  in  the  first  instance,  is  on  the  party 
affirming  the  validity  of  the  will,  (c)  But  when  the  will  has 
been  probated,  and  an  original  suit  has  been  instituted  to  set 
it  aside,  for  want  of  capacity  in  the  testator,  or  for  fraud,  the 
party  alleging  the  incapacity  or  fraud  is  put  upou  the  proof  ot 
his  allegations,  {d) 


SECTION  II. 
WHAT  NECESSABT  TO  CONSTITUTE  A  VALID  WILL. 

To  entitle  a  will  to  probate,  four  things  must  concur :  frst^ 
it  must  be  in  writing,  and  signed  by  the  testator  or  testatrix^ 
or  in  his  or  her  presence ;  second,  it  must  be  attested  by  two 
or  more  credible  witnesses ;  tJdrd,  two  witnesses  must  prove 
that  they  saw  the  testator  or  testatrix  sign  the  will  in  their 
presence,  or  that  he  or  she  acknowledged  the  same  to  be  his  or 
her  act  and  deed  ;  2in&  fourth,  they  must  swear  that  they  believe 
the  testator  or  testatrix  to  be  of  sound  mind  and  memory  at 
the  time  of  signing  and  acknowledging  the  same,  {e) 

The  statute  does  not  require  that  the  attesting  witnesses  to  a 
will  should  be  in  the  presence  of  each  other  when  they  sign 

M/) 

(5)  Riggs  vs.  Wilton,  13  111.  15  ;  Potter  vs.  Pott&r,  41  111.  80  ;  EolUnoay  vs. 
Oalloway,  51  111.  159. 

(c)  Tingley  vs.  Coxcgill,  48  Mo.  291 ;  Renn  vs.  Lamon,  33  Texas,  760. 

(d)  Renn  vs.  Lamon,  33  Texas,  760 ;  Roe  vs.  Taylor,  45  111.  485. 

(c)    Dickie  vs.  Carter,  42  111.  376;  but  see  Allison  vs.  Allen,  46  111.  61. 
(/)   Flinn  vs.  Oiven,  58  111,  111;  Amhre  vs.  Weishaar,  74  111.  109. 


BILLS   TO    SET   ASIDE   WILLS.  549 

Fraud  in  Procuring  Execution  of  a  Will. 

SECTION  III. 
FRAUD   IN    PROCUKING    EXECUTION    OF   A    WILL. 

In  the  absence  of  fraud  or  contrivance  shown  to  induce  a 
party  of  sound  mind  to  make  a  will  in  a  particular  way,  it  will 
be  valid ;  if  all  is  fair,  and  the  result  of  honest  argument  and 
persuasion,  or  of  such  influence  as  one  may  properly  obtain 
over  another,  the  will  must  stand,  {g) 

A  testator  of  sound  mind  may  make  such  final  disposition 
of  his  estate  by  will  as  he  may  choose,  subject  to  the  statutory 
rights  of  his  widow,  if  he  leave  one.  (A) 

Any  influence  which  induces  a  testator  to  make  a  dispositior 
of  property  which  he  does  not  desire  and  intend,  notwithstand- 
ing he  is  not  controlled  by  any  act  of  force,  coercion,  or  per 
suasion  put  forth  at  the  time  of  signing,  is  such  undue  influence 
as  will  avoid  a  will,  {i) 

If  the  jury  is  satisfied  from  the  evidence,  taken  as  a  whole, 
that  the  will  would  not  have  been  executed  by  the  testator, 
but  for  the  influence  exercised  over  him  by  the  devisee,  they 
should  find  that  the  will  was  procured  by  undue  influence,  and 
was  not  his  last  will,  {j) 

Whenever  a  person,  under  circumstances  which  enable  him 
to  exercise  a  strong  influence  over  the  mind  of  a  testator,  such 
as  great  age,  or  a  confidential  relation,  procures  such  testator 
to  make  a  will  in  his  favor,  the  burden  of  proof  is  upon  such 
person  to  show  that  no  undue  infiuence  was  exercised  ;  but  the 

{g)  Dickie  vs.  Carter,  42  111.  376 ;  Brownficld  vs.  Brownfield,  43  111.  147 ; 
Carmichael  vs.  Reed,  45  111.  108 ;  Small  vs.  Allen,  8  Term,  R.  147  ;  Tingley 
vs.  Cowgill,  48  Mo.  291  ;  Small  vs.  Small,  4  Greenl.  220 ;  see  Kempsey  YS.Mor 
ginnis,  2  Mich.  N.  P.  49. 

(h)  Jleuser  vs.  Harris,  42  111.  425  ;  Broicnfield  ys.  Brownfield,  43  111.  147; 
Bhoads  vs.  Rhoads,  lb.  239 ;  Carmicliael  vs.  Reed,  45  111.  108. 

(i)    Forney  vs.  Ferrell,  4  W.  Va.  729,  and  cases  there  cited. 

{j)    Ha/i'vey  vs.  Sullens,  46  Mo.  147. 


550  BILLS  TO   SET  ASIDE   WILLS. 

Want  of  Capacity  to  Make  a  Will, 

testator  acted  voluntarily  and  with  a  full  understanding  of 
what  he  was  doing,  {k) 


SECTION  IV. 

WAKT   OF    CAPACITY    TO    MAKE    A    WILL. 

A  will,  the  provisions  of  which  are  attributable  to  partial 
insanity,  is  invalid.  But  the  law  presumes  the  sanity  of  the 
testator.  (I) 

What  constitutes  the  want  of  a  sound  disposing  mind 
and  memory  is  incapable  of  a  definition  suited  to  all  cases. 
Each  case,  therefore,  must  be  determined  by  its  own  circum- 
stances, {m) 

Great  age  is  not  of  itself  an  incapacity,  {n)  JSTor  is  the 
unreasonableness  of  a  will  of  itself  intrinsic  proof  of  the  want 
of  a  disposing  mind,  (o)  Nor  do  long  continued  habits  of 
drunkenness  raise  the  presumption  of  imcompetency  to  make 
a  will,  {p) 

The  omission  of  the  name  of  a  child  m  a  last  will  does  not, 
of  itself,  prove  that  the  testator  was  incapacitated  ;  nor  will 
Buch  omission  destroy  its  validity,  [q) 

{k)  B&yd  vs.  Boyd,  66  Penn.  St.  R.  283  ;  Haney  vs.  Sullens,  46  Mo.  147; 
Taylor  vs.  Taylor,  8  How.  U.  S.  183  ;  Van  Horn  vs.  Keenan,  28  111.  452  ;  see 
Slocum  vs.  Marshall,  Wash.  C.  C.  400 ;  Jenkins  vs.  Pye,  12  Pet.  241 ;  Lind- 
say vs.  Lindsay,  50  111.  81. 

(l)  Cotton  vs.  Vlmer,  45  Ala.  378 ;  see  Turner  vs.  Hand,  8  Wall.  Jr.  88 ; 
Matter  of  Hutchins,  7  Phil.  Pa.  R.  69 ;  Chandler  vs.  Barrett,  21  La.  An.  58 ; 
Puryear  vs.  Reese,  6  C'oldw.  Tenn.  21 ;  Sloan  vs.  Maxwell,  2  Green,  Ch.  553. 

(m)  Thompson  vs.  Kyner,  65  Penn.  St.  368. 

(w)  Collins  vs.  Townley,  21  N.  J.  Eq.  353 ;  Clearwater  vs.  Kimler,  43  III. 
272. 

(<?)  Munday  vs.  Taylor,  7  Bush,  Ky.  491  ;  see  Burch  vs.  Brovm,  46  Mo. 
441;  see  Rutherford  vs.  Morris,  77  111.  397;  Carpenter  vs.  Calvert,  83  111.  62. 

(;;)  Gardner  vs.  Gardner,  22  Wend.  526;  WhitenacJc  vs.  Stryker,  1  Green, 
Ch.  8;  see  Yoe  vs.  McCord,  74  111.  73. 

(g)    Snow  vs.  Benton,  28  111.  306. 


BILLS   TO   SET   ASIDE   WILLS.  651 

Form  of. 


SECTION  V. 
FORM    OF    "BILL. 

No.  W^.     Bill  hy  heirs  at  law  to  set  aside  a  will. 

To  the  Honorable ,  Judge  of  tlie Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Your  oratrix,  A.  B.,  and  your  orator,  B.  B.,  the  husband  of 
the  said  A.  B.,  of,  etc.,  respectfully  represents  unto  your  honor, 
that  one  C.  D.,  the  father  of  your  oratrix,  A.  B.,  late  of,  etc., 
but  now  deceased,  on,  etc.,  executed  a  certain  instrument  in 
writing  purporting  to  be  his  last  will  and  testament ;  and  after- 
wards, on,  etc.,  departed  this  life,  leaving  the  follow^ing  named 
persons,  besides  your  oratrix,  his  heirs  at  law,  and  legal  repre- 
sentatives, to  wit :  E.  D.,  his  widow,  F.  D.,  his  son,  G.  H,, 
his  daughter,  late  G.  D.,  since  intermarried  with  L.  H.,  of, 
etc.,  H.  D.  and  J.  D.,  infant  children  of  O.  D.,  deceased,  late 
son  of  the  said  C.  D,,  deceased,  the  defendants  hereinafter 
named. 

And  your  oratrix  and  orator  further  represent,  that  the  said 
C.  D.,  in  and  by  the  said  instrument  of  writing,  so  purporting 
to  be  his  last  will  and  testament,  professedly  bequeaths  all  his 
estate,  both  real  and  personal,  as  follows,  that  is  to  say :  To  the 
said  E.  D.,  his  widow,  etc.  etc. ;  to  the  said  F.  D.,  his  son,  all, 
etc. ;  and  to  all  the  other  of  his  children  and  grandchildren 
nothing  whatever,  as  will  more  fully  appear  from  the  said 
instrument  in  writing,  when  produced  in  court,  and  from  a 
copy  of  the  same  which  is  hereto  attached,  marked  "  Exhibit 
A,"  and  is  made  a  part  of  this  bill. 

Your  oratrix  and  orator  further  represent,  that  on,  etc.,  the 
said  instrument  in  writing,  purporting  to  be  the  last  will  and 

testament  of  the  said  C.  D.,  was  exhibited  to  the court  of 

the  county  of ,  for  probate,  and  the  same  was  then  and 

there  probated,  and  letters  testamentary  thereon  were  granted 
to  one  W.  P.,  the  person  named  in  the  said  instrument  of 
writing,  and  one  of  the  defendants  hereinafter  named,  to  act 
as  executor  thereof;  and  tlie  said  W.  P.  then  and  there  took 
upon  himself  the  burden  of  sole  executor  of  tlie  said  supposed 
will  of  the  said  C.  D.,  deceased. 

Your  oratrix  and  orator  further  represent,  that  the  said  C. 
D.,  at  the  tim.e  of  executing  the  said  instrument  in  writing, 
purporting  to  be  his  last  will  and  testament,  was  not  of  sound 


552  BILLS   TO   SET  ASIDE   WILLS. 

Form  of. 

mind  and  memory ;  but,  on  tlie  contrary,  was  in  his  dotage, 
and  his  mind  and  memory  was  so  impaired  as  to  render  him 
wholly  incapable  of  making  any  just  and  proper  distribution  of 
his  estate. 

Your  oratrix  and  orator  further  represent,  that  the  defendants 
E.  D.  and  F.  D.,  the  only  legatees  in  the  said  pretended  will, 
used  and  exercised  many  undue  arts  and  fraudulent  practices,  and 
resorted  to  falsehood  and  misrepresentation  to  induce  the  said 

C.  D.  to  execute  said  instrument  of  writing,  and  the  said  C.  D., 
in  executing  the  same,  was,  in  fact,  under  improper  restraint 
and  undue  influence  from  the  said  arts  and  fraudulent  practices 
of  the  defendants  E.  D.  and  F.  D.  And  your  oratrix  and  orator 
particularly  represent,  that  the  defendants  E.  D.  and  F.  D.,  in 
order  to  induce  the  said  0.  D.  to  execute  the  said  instrument 
in  writing,  did,  etc.  {Here  set  forth  any  'particular  acts  resorted 
to  to  obtain  the  execution  of  the  will.) 

Your  oratrix  and  orator  furtlier  represent,  that  the  said  H. 

D.  and  J.  D.,  children  of  the  said  O.  D.  deceased,  are  infants 

under  the  age  of years,  and  have  no  legal  guardian,  and 

therefore  a  guardian  ad  litem  should  be  appointed  by  the  court, 
to  appear  for  and  represent  the  interests  of  the  said  minor 
defendants. 

Forasmuch,  therefore,  as  your  oratrix  and  orator  are  without 
remedy  in  the  premises,  except  in  a  court  of  equity,  and  to  the 
end  that  the  said  E.  D.,  F.  D.,  G.  H.,  L.  H.,  H.  D.,  J.  D.  and 
W.  P.,  executor  of  the  last  M'ill  and  testament  of  C.  D.  deceased, 
who  are  made  parties  defendants  to  this  bill,  may  be  required 
to  make  full  and  direct' answer  to  the  same,  hut  not  under  oath^ 
the  answer  under  oath  heing  hereby  waived  j  that  a  guardian 
ad  litem  may  be  appointed  for  the  court  by  the  defendants  H. 
D.  and  J.  D.,  infants ;  that  the  said  instrument  in  writing  and 
the  probate  thereof  may  be  set  aside  and  declared  null  and 
void,  and  not  tlie  last  will  and  testament  of  the  said  C.  D. 
deceased,  and  the  estate  of  the  said  C.  D.  distributed  among 
his  heirs  according  to  law ;  and  that  your  oratrix  and  orator 
may  have  such  other  and  further  relief  in  the  premises  as  equity 
may  require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sheriff  of  the  said  county  of , 

commanding  him  that  he  sunimou  the  defendants  E.  D.,  F. 
D.,  G.  H.,  L.  H.,  H.  D.,  J.  D.  and  W.  P.,  executor  of  the  last 
will  and  testament  of  the  said  C.  D.  deceased,  to  appear  before 

the  said  court  on  the  tirst  day  of  the  next term  thereof, 

to  be  held  at  the  court  houso  in ,  in  the  county  of 

afbresaid,  then  and  there  to  answci-  tliis  bill,  etc. 

Sol.  for  Coviyilainants. 


BILLS  TO   SET  ASIDE  WILLS.  553 

Issue  of  Fact  to  be  Tried  by  a  Jury  —  Decree,  etc. 

SECTION   VI 
ISSUE  OF  FACTS  TO  BE  TEIED  BY  A    JURY. 

The  statute,  as  we  have  seen,  requires  an  issue  at  law  to  be 
made  up,  whether  the  writing  produced  be  the  will  of  the  tes- 
tator or  not,  which  shall  be  tried  by  a  jury  in  the  circuit  court 
of  the  county  wherein  the  will  or  codicil  was  proven  and  re- 
corded, according  to  the  practice  of  courts  of  chancery  in  similar 
cases,  [r) 

No.  W3.     Order  directing  an  issue  of  fact  to  he  tried  by  a 
jury  as  to  the  validity  of  a  will. 

{Caption,  and  title  of  cause  as  m  No.  79,  suite,  page  198.) 

This  cause  came  on  to  be  heard  upon  the  pleadings  filed,  and 
the  issues  made  up  by  the  pleadings.  It  is  ordered  that  the 
following  issues  of  fact  be  made  and  tried  by  a  jury,  to  wit : 

1.  Was  the  writing  read  in  evidence,  purporting  to  be  the 
last  will  and  testament  of  E.  F.,  deceased,  the  last  will  and  testa- 
ment of  the  said  E.  F.  or  not. 

2.  Was  the  said  E.  F.,  at  the  time  of  the  execution  and 
attestation  of  the  said  writing  read  in  evidence,  purporting  to 
be  the  last  will  and  testament  of  the  said  E.  F.,  of  sound  mind 
and  memory. 

3.  Was,  etc.  {Here  insert  any  other  issue  of  fact  raised  hy 
the  pleadings.) 

SECTION  VII. 

DECREE. 

No.  WJ^..     Decree  setting  aside  a  will,  etc. 

{Caption,  and  title  of  cause  as  in  No.  79,  ^nte,  jjage  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint herein,  the  answer  of  the  defendants  thereto,  and  the 
replication  of  the  complainant  to  such  answer;  and  the  court 

(r)  See  Hubbard  vs.  Hi<hhard,  6  Mass.  399;  Brooks  vs.  Barrett,  7  Pick. 
98;  Rigg  vs.  Wifton,  13  11).  15;  Mgatt  vs.  Walker,  44  111.  485;  Pai>;.--f  vs. 
Ranm,  51  111.  88;  Yoe  vs.  McCord,  74  111.  33;  Rutherford  vs.  Morris,  77  Hi. 
397. 


554  BILLS   TO   SET  ASIDE  WILLS. 

Decree. 

having  heretofore  directed  an  issne  at  law  to  be  made  up, 
whether  the  writing  referred  to  in  the  pleadings,  and  purport- 
ing to  be  the  last  will  and  testament  of  the  said  E.  F.,  was  the 
last  will  and  testament  of  the  said  E.  F.  or  not ;  and  a  jury, 
to  wit :  {Here  set  forth  the  names  of  the  jurors^  having  been 
duly  called,  selected  and  sworn  to  try  the  said  issues ;  and  the 
said  jury  having  heard  the  evidence  of  the  respective  parties, 
and  the  arguments  of  counsel,  in  open  court,  and  under  the 
direction  of  the  court ;  and  having  found  by  their  verdict,  that 
the  said  writing  was  not  the  last  will  and  testament  of  the  said 
E.  F. ;  and  that  the  said  E.  F,,  at  the  time  of  the  execution- 
and  attestation  of  the  said  writing,  was  not  of  sound  mind  and 
memory ;  and  the  defendants  having  interposed  a  motion  in 
this  cause  to  set  aside  said  verdict  and  for  a  new  trial ;  and  the 
court  having  heard  the  grounds  and  arguments  in  support 
thereof,  and  being  fully  advised  in  the  premises,  overruled  the 
said  motion ; 

It  is  therefore  ordered,  adjudged  and  decreed,  by  the  court, 
that  the  said  instrument  in  writing,  purporting  to  be  the  last 
will  and  testament  of  the  said  E.  F.,  deceased,  and  the  probate 
of  the  said  will  in  the  county  court  of  said  county,  and  the  pro- 
ceedings thereunder,  be  and  the  same  are  hereby  set  aside,  and 
be,  and  the  same  are  hereby  declared  null  and  void. 

It  is  further  ordered,  that  the  defendants  pay  the  costs  of  this 
suit,  to  be  taxed  by  the  clerk  of  this  court,  and  that  execution 
issue  therefor. 


CHAPTER  XXXYI. 

NE    EXEAT. 

Section  1.    Nature  of,  and  when  Pkopbb. 

2.      BlI-L   FOR. 

8.    How  Obtained,  etc. 
4.    Proceedings  upon. 


SECTION  I. 
NATUKE    OF,    AND    WHEN    PEOPEK. 

The  writ  of  ne  exeat  repvljlica  is  a  prbceoE^  issuing  out  of  a 
court  of  record  to  restrain  a  person  from  leaving  the  state.  It 
was  originally  applied  only  to  great  political  objects  and  purposes 
of  state,  for  the  benefit  or  safety  of  the  realm.  In  the  time  of 
Richard  II,  a  statute  was  passed  prohibiting  all  persons  whatso- 
ever, excepting  lords,  great  men,  merchants  and  soldiers,  from 
going  abroad,  {a)  It  is  remarked  by  Fitzherbert,  that,  by  the 
common  law,  every  man  may  go  out  of  the  realm  at  his  pleas- 
ure, without  the  king's  leave  ;  yet,  because  every  man  is  bound 
to  defend  the  king  and  his  realm,  therefore  the  king,  at  his 
pleasure,  by  his  writ,  may  command  a  man  that  he  go  not 
beyond  the  sea,  or  out  of  the  realm  without  license ;  and  if  he 
do  the  contrary,  he  shall  be  punished  for  disobeying  the  king's 
command.  (J) 

In  the  United  States  it  is  only  applied  to  civil  purposes,  in 
aid  of  the  administration  of  justice.  It  is  resorted  to  for  the 
purpose  of  obtaining  equitable  bail ;  (c)  and  its  object  and  de- 
sigii  is  to  hold  a  party  amenable  to  justice,  and  to  render  him 


(a)  Fleta,  383 ;  Beames  on  Ne  Exeat,  6 ;  Anon.  1  Atk.  521 ;  Flack  vb. 
mim,  1  Jac.  &  Walk.  405,  413,  414. 

(6)  Fitzlierbert's  Natura  Brevium,  85  ;  2  Story's  Eq.  Juris.  §  14G6  ;  2 
Co.  Inst.  54  ;  8  Co.  Inst.  ch.  84,  p.  178,  179  ;  Ex  parte  Brunker.  3  P.  Wms.312. 

(c)  Mitchell  vs.  Bxirch,  2  Paige,  Ch.  606 ;  Gresham  vs.  Peterson,  25  Ark. 
877. 


556  NE  EXEAT. 


Nature  of,  and  when  Proper. 


personally  responsible  for  the  performance  of  the  orders  and 
decrees  of  the  court  by  preventing  him  from  withdrawing  him- 
self from  its  jurisdiction,  {d) 

In  some  of  the  states  it  is  granted  only  in  cases  of  equi- 
table debts  and  claims ;  {e)  and  refused  where  the  debt  is 
such  as  that  it  is  demandable  in  a  suit  at  law.  {f)  The  statute 
of  Illinois,  revision  of  1874,  however,  provides  "  that  writs  of 
ne  exeat  republica  may  hereafter  be  granted,  as  well  in  cases 
where  the  debt  or  demand  is  not  actually  due,  but  exists  fairly 
and  honafide  in  expectancy  at  the  time  of  making  application, 
as  in  cases  where  the  demand  is  due ;  and  it  shall  not  be  neces- 
sary, to  authorize  the  granting  of  such  writ  of  ne  exeat,  that  the 
applicant  should  show  that  his  debt  or  demand  is  purely  of 
an  equitable  character,  and  only  cognizable  before  a  court  of 
equity." 

(§  2.)  "  In  cases  of  joint,  or  joint  and  several  obligors  and 
debtors,  if  one  or  more  of  them  be  about  to  remove  without  the 
jurisdictional  limits  of  the  state,  taking  their  property  with 
them,  leaving  one  or  more  co-obligors  or  co-debtors  bound  with 
them  for  the  payment  of  any  sum  of  money,  or  for  the  delivery 
of  any  article  of  property,  or  for  the  conveyance  of  land  at  a 
certain  time,  which  time  shall  not  have  arrived  at  the  time  of 
Buch  intended  removal,  such  co-obligor  or  co-debtor  who  remains, 
shall  be  entitled,  on  application,  to  a  writ  of  ne  exeat,  to  com- 
pel the  co-obligor  or  co-debtor  who  is  about  to  remove,  to 
secure  the  payment  of  his  part  of  the  sum  to  be  paid,  or  of  the 
delivery  of  the  property,  or  to  convey,  or  to  join  in  the  con- 
veyance of  the  land.  Also,  in  cases  of  security,  the  writ  of 
ne  exeat  may  issue,  on  application  of  a  security  against  the 
principal  or  co-security,  when  the  obligation  or  debt  shall  not 

{d)  Oleason  ts.  Bisby,  1  Clarke,  551 ;  Cowdin  vs.  Cram,  3  Edw.  Ch.  251 ; 
Beymour  vs.  Hazard,  1  Johns.  Ch.  1  ;  Johnson  vs.  Clendenin,  5  Gill  &  J.  463; 
Hunter  vs.  Nelson,  5  Blackf.  263  ;  Oreshnm  vs.  Peterson,  25  Ark.  377 ;  see 
Samuel  vs.  Wiley,  50  N.  H.  353  ;  Bnos  vs.  Hunter,  4  Gilm.  211. 

(e)  Palmer  vs.  Van  Doren,  2  Edw.  Ch.  425 ;  Seymour  vs.  Hazard,  4 
Johns.  Ch.  1 ;  Hunter  vs.  Nelson,  5  Blackf.  263  ;  Dean  vs.  Smith,  23  Wis.  483 

(/)  Nixon  vs.  Richardson,  4  Dessau.  108 ;  Brown  vs.  Haff,  5  Paige,  Ch. 
235  ;  see  Fisher  vs.  Stone,  3  Scam.  68. 


NE  EXEAT.  557 


Nature  of,  and  when  Proper. 


yet  be  due,  and  the  principal  or  co-securitj  is  about  removing 
out  of  the  state."  {g) 

Independent  of  the  statute,  courts  of  chancery  may  award 
the  writ  of  ne  exeat  upon  all  equitable  demands.  It  is  an 
efficient  remedial  process  in  cases  of  a  bill  for  an  account  or  for 
alimony.  (A) 

The  12th  section  of  article  II  of  the  constitution  provides 
that  "no  person  shall  be  imprisoned  for  debt  unless  upon 
refusal  to  deliver  up  his  estate  for  the  benefit  of  his  creditors, 
in  such  manner  as  shall  be  prescribed  by  law,  or  in  case  where 
there  is  strong  presumption  of  fraud."  This  provision  of  our 
constitution  has  abolished  such  imprisonment  as  practiced 
under  the  common  law,  and  where  a  debt  is  the  basis  of  the 
action,  in  order  to  justify  imprisonment,  the  foundation  must 
be  laid  in  the  fact  of  a  refusal  to  deliver  up  property  for  the 
benefit  of  creditors,  or  fraud  in  contracting  or  evading  pay- 
ment of  the  debt.  And  in  proceedings  for  ne  exeat,  the  bill 
must  show,  by  facts  stated  and  circumstances  detailed,  that  the 
debtor  has  been  guilty  of  fraud  or  that  there  is  a  strong  pre- 
sumption of  fraud.  (/) 

A  writ  o^  ne  exeat  will  not  be  granted  where  it  appears  frora 
the  bill  or  petition  that  a  complete  remedy  may  be  had  at  law;  {jy 
and  where  it  is  based  on  the  ground  that  the  defendant  has 
sold  all  his  property,  and  is  about  to  depart  the  state,  it  must 
show  that  the  property  alleged  to  have  been  sold  was  not 
exempt  from  execution,  or  it  will  be  defective.  (Jc) 

(g)    Rev.  Stat.  (1874)  716;  Rev.  Stat.  (1877)  678. 

(A)  Denton  vs.  Denton,  1  Johns.  Ch.  441;  Dean  vs.  Smith,  23  Wis.  483; 
Hammond  vs.  Hammond,  1  Clark,  551;  Prather  vs.  Prather,  4  Dessau.  33. 

(0  Malcolm  vs.  Andreivs,  68  111.  100;  see  Ex  parte  Smith,  16  111.  847; 
Parker  ^15.  FoUensbce,  45  111.  73;   West  vs.  Walker,  6  Blackf.  420. 

(j)    Victor  Scale  Co.  vs.  Shurtliff,  81  lU.  313. 

{k)   Jones  vs.  Kennicott,  83  111.  484. 


558  NE  EXEAT. 


Form  of  Bill. 


SECTION  II. 
BILL    FOR. 

No.  W5.     Bill  for  ne  exeat  republica. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

Tour  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc.,  one  C.  D.,  being  indebted  to  your  orator 

in  about  the  sum  of dollars,  your  orator  instituted  a  suit 

against  him  before  L.  M.,  Esq.,  a  justice  of  the  peace,  in  and 
for  said  county,  and  on,  etc.,  recovered  a  judgment  before  said 

justice  against  the  said  C.  D.,  for  the  sum  of dollars,  and 

costs  of  suit ;  that  on,  etc.,  the  said  C.  D.  appealed  from  such 
judgment,  rendered  by  the  said  L.  M.,  as  justice  of  the  peace 
as  aforesaid,  to  the  circuit  court  of  said  county,  and  executed 
an  appeal  bond  to  your  orator,  conditioned  according  to  law, 

bearing  date  on,  etc.,  in  the  penal  snm  of dollars,  with 

one  E.  F.,  as  security ;  which  bond  was  dul}-  approved  by  said 
justice ;  as  will  more  fully  appear  by  said  appeal  bond  now  on 
file  in  the  office  of  the  clerk  of  the  circuit  court  of  said  county, 
reference  thereto  being  had ;  a"  copy  of  which  is  hereto 
attached,  marked  "  Exhibit  A,"  and  is  made  a  part  of  this  bill. 

And  your  orator  further  represents  unto  your  honor,  that 
subsequently  to  the  taking  of  such  appeal,  viz.,  on  or  about  the 

day  of,  etc.,  the  said  E.  F.  became  insolvent  and  left  the 

state. 

And  your  orator  further  shows,  that  the  said  C.  D.  has 
lately  threatened  and  given  out  that  he  M^ill  speedily  leave  this 
state  and  go  to  the  State  of  Kansas.  Yonr  orator,  therefore, 
charges  that  the  said  C.  D.  is  about  to  remove  from  this  state, 
taking  his  property  with  him  ;  and  that  your  orator  will  be  left 
without  any  security  whatever  for  the  amount  of  his  said 
judgment. 

Your  orator  further  represents  unto  your  honor,  that  the 
said  appeal  is  still  pending  and  undetermined  in  said  circuit 

court.     That  the  said  sura  of dollars  is  justly  due  your 

orator ;  that  your  orator  believes,  and  so  states  the  facts  to  be, 
that  the  said  C.  D.  took  said  appeal  for  mere  delay. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  who  is  made  party  defendant  to  this  bill,  may 


NE  EXEAT.  559 


How  Obtained  —  By  whom  Granted  —  Bond,  etc. 

be  required  to  make  fall  and  perfect  answer  to  the  same,  but 
not  under  oath,  the  ansioer  under  oath  being  hereby  waived  j 
and  that  the  defendant  may  be  stayed  by  the  people's  writ  of 
ne  exeat  republica  from  departing  out  of  the  jurisdiction  of  this 
court ;  and  that  your  orator  may  have  such  other  and  further 
relief  in  the  premises  as  equity  may  require  and  to  your  honor 
shall  seem  meet. 

May  it  please  your  honor  to  grant  unto  your  orator  the 
people's  writ  of  ne  exeat  republica,  staying  the  said  0.  D.  from 
departing  into  parts  beyond  this  state,  and  out  of  the  jurisdic- 
tion of  this  court,  without  leave  first  had,  in  pursuance  of  the 
statute  in  such  case  made  and  provided. 

,  Sol.  for  Complainant.  A,  B. 

(^Add  affidavit  as  follows ;) 

No.  206.     Affidavit  to  a  bill  for  ne  exeat. 

State  of ) 

County  of f  " '  * 

A.  B.,  of,  etc.,  on  oath,  states  that  he  is  the  complainant  in 
the  above  bill,  subscribed  by  him ;  that  he  has  heard  the  same 
read,  and  knows  the  contents  thereof;  that  the  allegations 
therein  contained  are  true  in  substance  and  in  fact. 

Subscribed  and  sworn  to,  etc.  A.  B. 


SECTION  III. 
HOW    OBTAINED,    ETC. 

By  whom  granted. — The  statute  provides  that 
(§  3.)  "  The  superior  court  of  Cook  county,  and  the  circuit 
courts  in  term  time,  and  any  judge  thereof  in  vacation,  shall 
have  power  to  grant  writs  of  ne  exeat. 

(§  4.)  "  When  no  judge  authorized  to  issue  writs  of  ne  exeat 
is  present  in  the  county,  or  being  present,  is  unable  or  incapaci- 
tated to  act,  a  master  in  chancery  in  such  county  may  order 
the  issuing  of  such  writs."  {a) 

Bill  or  petition  for  —  Bonds  to  be  given,  etc. — The  revised 
•statute  of  Illinois,  of  1874,  in  relation  to  ne  exeat,  provides 
that, 

(§5.)  "  No  writ  of  ne  exeat  shall  be  granted  but  upon  bill 
or  petition  filed,  and  affidavit  to  the  truth  of  the  allegations 

(a)    Bassett  vs.  Bratton,  86  111.  152. 


560  NE   EXEAT. 


How  Obtained  —  Order  Granting,  etc. 


therein  contained.  Upon  the  granting  of  any  such  writ,  the 
court,  judge  or  master  shall  indorse,  or  cause  to  be  indorsed, 
upon  the  bill  or  petition,  in  what  penalty,  bond  and  security 
shall  be  required  of  the  defendant.  Said  court,  judge  or  mas- 
ter shall  also  take,  or  cause  to  be  taken,  of  the  complainant, 
before  the  writ  shall  issue,  bond  with  good  and  sufficient 
surety,  in  such  sum  as  the  court,  judge  or  master  shall  deem 
proper,  conditioned  that  the  said  complainant  will  prosecute 
his  bill  or  petition  with  effect,  and  that  he  will  reimburse  to 
the  defendant  such  damages  and  costs  as  he  shall  wrongfully 
sustain  by  occasion  of  the  said  writ.  If  any  defendant  to  such 
writ  of  ne  exeat  shall  think  himself  aggrieved,  he  may  bring 
suit  on  such  bond ;  and  if,  on  trial,  it  shall  appear  that  such 
writ  of  ne  exeat  was  prayed  for  without  a  just  cause,  the  per- 
son injured  shall  recover  damages,  to  be  assessed  as  in  other 
cases  on  penal  bonds." 

No  writ  of  ne  exeat  will  be  granted  but  upon  bill  or  petition 
filed,  and  affidavit  of  the  truth  of  the  allegations  therein  con- 
tained, [h)  The  affidavit  must  be  positive;  {I)  information  and 
belief  will  not  be  sufficient,  (m) 

Mere  apprehensions  of  the  complainant  will  not  authorize 
the  issuing  of  the  writ,  {n) 

Order  directmg  clerk  to  issue  writ,  etc. — The  statute  provides 
that, 

(§  6.)  "When  a  writ  of  ne  exeat  is  granted  by  a  judge  or 
master  in  vacation,  he  shall  direct  the  clerk  of  the  court  to 
which  the  writ  is  to  be  returnable  to  issue  the  same. 

(§  7.)  "All  writs  of  ne  exeat  shall  be  returnable  into  the 
court  out  of  which  they  issue." 

No.  W7.     Order  of  judge  grantvng  a  writ  of  ne  exeat. 

Let  a  writ  of  ne  exeat  issue  as  prayed  for  in  the  within  bill, 
returnable  to  the  next  term  of  the  court,  upon  the  complainant 

(A;)    Mattocks  vb.  Tremain,  3  Johns.  Ch.  75. 

(0     TTwrne  vs.  Ealsey,  7  Johns.  Ch.  189  ;  OiJbert  vs.  Colt,  Hopk,  Ch.  496. 

(m)  Cowdin  vs.  Cram,  3  Edw.  Ch.  231. 

(to)  Woodward  vs.  Schatzell,  3  Johns.  Ch.  412. 


NE  EXEAT.  561 


Order,  etc. —  Proceedings  Upon,  etc. 


filing  a  bond  in  the  sum  of dollars  with  E.  F.  as  security, 

conditioned  according  to  law.  The  clerk  will  indorse  on  said 
writ  that  the  defendant  be  required  to  give  bond,  with  security, 
in  the  sum  of dollars. 

No.  208.     Order  of  master  in  chancery  granting  a  ne  exeat  in 
the  ahsence  of  the  judge. 

It  appearing  to  the  undersigned  that  the  honorable  J.  K., 
judge  of  the  circuit  court,  presiding  in  said  county,  is  absent 
from  the  county,  it  is  ordered  that  the  clerk  of  said  court  issue 
a  writ  of  ne  exeat,  as  prayed  for  in  the  within  bill,  returnable 
to  the  next  term  of  said  court,  upon  the  complainant  filing 
bond  in  the  sum  of dollars,  with  E.  F.  as  security,  con- 
ditioned according  to  law.  The  clerk  will  indorse  on  said  writ 
that  the  defendant  be  required  to  give  bond,  with  security,  in 
the  sum  of dollars. 


SECTION  IV. 
PROCEEDINGS    UPON. 

The  writ  — Defendants  hand,  etc. — The  statute  directs  that, 
(§  8.)  "  The  writ  of  ne  exeat  shall  contain  a  summons  for 
the  defendant  to  appear  in  the  proper  court,  and  answer  the 
petition  or  bill,  and  upon  the  writ  being  served  upon  the  said 
defendant,  he  shall  give  bond,  with  surety,  in  the  sum  indorsed 
on  such  writ,  conditioned  that  he  will  not  depart  the  state  with- 
out leave  of  said  court,  and  that  he  will  render  himself  in  exe- 
cution to  answer  any  judgment  or  decree  which  the  said  court 
may  render  against  him  ;  and  in  default  of  giving  such  security, 
he  may  be  committed  to  jail,  as  in  other  cases,  for  the  want  of 
bail.  No  temporary  departure  from  the  state  shall  be  consid- 
ered as  a  breach  of  the  condition  of  the  said  bond,  if  he  shall 
return  before  personal  appearance  shall  be  necessary  to  answer 
or  perform  any  judgment,  order  or  decree  of  said  court." 

Surety  may  surrender  principal. — The  statute  provides  that, 
(§  9.)  "  The  surety  in  any  bond  for  the  defendant,  as  afore- 
said may,  at  any  time  before  the  said  bond  shall  be  forfeited, 
36 


562  NE   EXEAT. 


Proceedings  Upon,  etc. 


Burrender  the  said  defendant,  in  exoneration  of  himself,  in  the 
same  manner  that  bail  may  surrender  their  principal,  and  obtain 
the  same  discharge." 

Proceedings  in  court. — The  statute  provides  that, 
(§  10.)  "  On  the  return  of  the  writ  of  ne  exeat^  if  the  same 
shall  have  been  duly  served,  the  court  shall  proceed  therein  as 
in  other  cases  in  chancery,  if  the  time  of  performance  of  the 
duty  or  obligation  of  the  defendant  has  expired;  if  not,  then 
the  proceedings  shall  be  stayed  until  it  has  expired." 

Quashing  writ.,  etc. — It  is  provided  by  the  statute,  that, 
(§  11.)  "Nothing  contained  in  the  preceding  section   shall 
prevent  the  court  from  proceeding  at  any  time  to  determine 
whether  the  writ  ought  not  to  be  quashed  or  set  aside." 


CHAPTEK  XXXYII. 

BILLS    TO    EESTEALN    WASTE. 

Section  1.    Nature  of,  and  when  Proper. 
2.    Form  of  Bill. 


SECTION  I. 
NATURE   OF,  AND   WHEN    PROPER. 

Courts  of  equity  will  interfere  to  restrain  waste  by  persons 
having  limited  interests  in  property,  on  the  mere  ground  of  the 
common  law  rights  of  the  parties,  and  the  difficulty  of  obtain- 
ing the  immediate  preservation  of  the  property  from  destruc- 
tion or  irreparable  injury,  by  the  process  of  the  common  law.  {a) 

There  are  many  cases  where  a  person  is  punishable  at  law 
for  committing  waste,  and  yet  a  court  of  law  will  enjoin  him, 
as,  where  there  is  a  tenant  for  life,  remainder  for  life,  remainder 
in  fee,  the  tenant  for  life  will  be  enjoined  from  committing 
waste,  (b)  So,  a  landlord  may  have  an  injunction  to  stay  waste 
against  an  under-lessee,  (c)  So,  an  injunction  may  be  obtained 
against  a  tenant  from  year  to  year,  after  notice  to  quit,  to  re- 
strain him  from  removing  the  crops,  etc.,  according  to  the 
usual  course  of  husbandry,  {d)  And  an  injunction  may  be 
obtained  against  a  lessee,  to  prevent  him  from  making  material 
alterations  in  a  dwelling-house,  {e) 

An  injunction  to  restrain  waste  lies  in  cases  where  the  ag- 
grieved party  has  equitable  rights  only ;  Thus,  for  instance,  in 

(a)    3  Story's  Eq.  Juris.  §  913. 

(6)  2  Story's  Eq.  Juris.  §  913  ;  Powys  vs.  Blagrave,  27  Eng.  Law  &  Eq. 
R.  568  ;  see  Abraham  vs.  Bubh,  2  Freem.  Ch.  53;  Oarth  vs.  Cotton,  1  Dick. 
185,  205,  208 ;  Eden  on  Inj.  ch.  9,  pp.  163,  163  ;  Davis  vs.  Leo,  6  Ves.  787. 

(c)  Fa/rrant  vs.  Lowell,  3  Atk.  733 ;  S.  C.  Ambler,  105. 

(d)  Pratt  vs.  Brett,  3  Mad.  63 ;  Onslow  vs. ,  16  Ves.  173. 

(e)  Douglas  vs.  Wiggins,  1  Johns.  Ch.  435  ;  3  Story's  Eq.  Juris.  §  913. 


564  BILLS   TO   KESTRAIN   WASTE. 

Nature  of,  and  when  Proper. 

cases  of  mortgages,  if  the  mortgagor  or  mortgagee  in  posses- 
Bion  commits  waste,  or  threatens  to  commit  it,  an  injunction 
will  lie.  (/) 

Equitable  waste  is  deiined  to  consist  of  sucli  acts  as  are  not 
considered  waste  at  law,  being  consistent  with  the  legal  rights 
i,  the  party  committing  them,  but  which  are  deemed  waste 
in  equity  on  account  of  their  manifest  injury  to  the  inherit- 
ance, {g) 

The  remedy  by  injunction  to  restrain  waste  being  to  prevent 
a  known  and  certain  injury,  is  applicable  to  every  species  of 
waste,  [h)  And  if  the  tenant  for  life  commits  waste  mali- 
ciousl}',  he  will  be  enjoined,  even  though  he  had  the  power  to 
do  the  acts  complained  of.  {i)  And  the  fact  that  the  power 
is  being  exercised  in  an  unreasonable  manner  and  against  con- 
science is  sufficient  to  warrant  the  interference,  {j)  So,  too, 
the  assignee  of  the  tenant  for  life  without  impeachment  of 
waste,  will  be  restrained.  (Jc) 

The  general  rule  is,  that  everything  is  waste  which  occasions 
a  permanent  injury  to  the  inheritance ;  but  it  has  been  said 
that  the  situation  of  this  country  requires  an  application  of  the 
rule  different  from  that  which  niight  be  proper  in  England.  {[) 

A  threat  to  commit  waste  is  sufficient  to  ground  an  injunc- 
tion upon ;  (m)  but  the  mere  apprehension  of  waste  intended 
is  not  sufficient  where  the  defendant  denies  any  intention,  [n) 

Where  the  title  is  doubtful  or  disputed,  as  between  devisee 

(/)  Farrant  vs.  Lovell,  3  Atk.  723 ;  PJmnix  vs.  Clark,  2  Halst.  Ch.  447 ; 
Eden  on  Inj.  ch.  9,  pp.  165,  166  ;  Brady  vs.  Waldron,  2  Johns.  Ch.  148  ;  » 
Story's  Eq.  Juris.  §  710,  a,  914. 

(fir)    Story's  Eq.  Juris.  §  915  ;  High  on  Inj.  §  432. 

(A)    HawUy  vs.  Clowes,  2  Johns.  Ch.  123. 

{i)  Ahraliam  vs.  Buhh,  2  Freem.  Ch.  53  ;  see  Vane  vs.  Barnard,  1  Salk» 
161 ;  Clement  vs.  Wheeler,  25  N.  H.  360  ;  Packington  vs.  PacMngton,  3  Atk. 
215. 

{j)    Aston  vs.  Aston,  1  Ves.  2(54 ;  Marker  vs.  Marker,  9  Hare,  1. 

{k)    Clement  vs.  Wieeler,  25  N.  H.  361. 

(0    Keeler  vs.  Eastman,  11  Vt.  293 ;  Findlay  vs.  Smith,  6  Munf.  134. 

(m)  London  \B.Warfield,  5  J.  J.  Marsh.  196  ;  Livingston  vs.  Reynolds,  26' 
Wend.  115  ;  Oibson  vs.  Smith,  2  Atk.  183. 

(»)    7  Ves.  309  ;  see  Coffin  vs.  Coffin,  Jac.  R.  70. 


BILLS   TO   EESTEAIN   WASTE.  565 

Nature  of,  and  when  Proper. 

and  heir  at  law,  or  otherwise,  an  injunction  will  not  be 
granted,  (o) 

A  bill  in  equity  is  the  appropriate  remedy  for  a  mortgagee 
against  a  mortgagor  in  possession,  who  is  impairing  the  security 
by  committing  waste,  (j?) 

A  tenant  in  dower  of  coal  lands,  or  a  tenant  for  life,  may 
take  coal  to  any  extent  from  a  mine  already  opened,  or  sink 
new  shafts  into  the  same  vein  of  coal ;  (^)  and  may  take  reason- 
able firewood ;  {r)  but  it  has  been  held,  that  a  tenant  for  life 
has  no  right  to  take  clay  or  wood  from  the  premises  for  the 
manufacture  of  bricks,  (s) 

An  injunction  to  stay  waste  is,  as  a  general  rule,  prospect- 
ive, and  the  court  will  not,  unless  under  very  special  circum- 
stances, grant  an  injunction  to  prevent  the  removal  of  timber 
already  cut ;  {t)  and,  so  far  as  the  bill  seeks  to  recover  for 
waste  already  committed,  it  cannot  be  sustained,  {u) 

An  injunction  against  waste  may  be  obtained  against  a 
vendor  if  the  contract  is  admitted ;  (v)  so  also  against  a  mort- 
gagor, (w)  or  a  mortgagor  in  fee,  or  for  years ;  (x)  but  a  mort- 
gagor may  cut  under-wood  of  proper  growth,  (y)  It  also  iies 
against  lessee  to  prevent  his  cutting  growing  timber;  (s)  or 
injuring  fish  ponds;  {a)  or  breaking  up  ancient  meadow  or 

(o)  Meld  vs.  Jackson,  2  Dick.  599 ;  Smith  vs.  Collyer,  8  Ves.  89  ;  Pils- 
worth  vs.  Hopton,  6  Ves.  50,  a ;  Norway  vs.  Roice,  16  Ves.  146,  154. 

{p)  Cooper  vs.  Davis,  15  Conn.  556  ;  Brady  vs.  Waldron,  2  Johns.  Ch.  148  ; 
Salmon  vs.  Clagett,  3  Bland,  125  ;  Capner  vs.  Flemington  Mining  Co.  2  Green, 
Ch.  467. 

{q)    Crouch  vs.  Fury  ear,  1  Eand.  258  ;  7  Harris,  323  ;  12  Id.  162. 

(r)    Gardiner  vs.  Bering,  1  Paige,  Ch.  573. 

(s)    Livingston  vs.  Reynolds,  2  Hill,  Ch.  157  ;  26  Wend.  115. 

(f)    Watson  vs.  Hunter,  5  Johns.  Ch.  169. 

{u)    Bovming  vs.  Palmater,  1  Monr.  64. 

{v)    Norway  vs.  Rowe,  19  Ves.  150  ;  Smith  vs.  Price,  39  111.  28. 

{w)  8  Atk.  210  ;  Oray  vs.  Baldwin,  8  Blackf.  164 ;  Maryland  vs.  Northern, 
etc.  18  Md.  193. 

{x)  3  Atk.  723 ;  Nelson  vs.  Pinegar,  30  111.  473  :  Ensign  vs.  Colburn,  11 
Paige,  Ch.  503. 

(y)    Hampton  vs.  Hodges,  8  Ves.  105. 

(s)  Vansendau  vs.  Rose,  2  Jac.  &  W.  264 ;  Bishop  of  Winchester  vs.  W<^ 
gar,  3  Swanst.  493,  note  a. 

(a)   Earl  of  Bathurst  vs.  Burden,  2  Bro.  Ch  Ca.  64, 


566  BILLS   TO   EESTEAIN  WASTE. 

Form  of  Bill, 

pasture  land ;  (5)  or  from  sowing  lands  with  mustard  or  any 
other  pernicious  crop ;  (c)  or  from  digging  the  soil  for  bricks ;  {d) 
or  acting-  contrary  to  his  express  covenants,  (e) 

The  threatened  in  closure  of  a  highway  will  be  prevented  by 
an  injunction.  (/")       » 

An  executor  who  has  no  estate  in  premises,  but  who  is 
authorized  to  lease  them,  cannot  maintain  an  action  on  the 
case  for  waste.  Such  action  must  be  by  a  reversioner  in  fee. 
The  only  remedy  of  the  executor  for  the  injury  is  by  action 
upon  the  covenants  in  the  lease,  {g) 

The  reader  is  referred  to  2  Story's  Eq.  Juris.  §  909-920 
High  on  Inj.  §  419-457,  for  a  further  investigation  of  waste. 

SECTION  II. 
FORM   OF   BILL. 

No.  W9.    Bill  hy  landlord  against  tenant  to  restrain  waste  — 

injunction^  etc. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  before  and  at  the  time  of  making  the  lease  herein- 
after mentioned,  your  orator  was  seized  in  fee  simple  of  the 
premises  hereinafter  described ;  and  being  so  seized,  b}'  a  certain 
lease,  bearing  date  on,  etc.,  and  made  by  and  between  your 
orator,  of  the  one  part,  and  C.  D  ,  of,  etc.,  the  defendant  here- 
inafter named,  of  the  other  part,  your  orator  demised,  leased, 
and  to  farm  let,  unto  the  defendant,  all,  etc.,  {Here  describe  the 
'premises  /)  to  hold  the  same,  with  the  appurtenances,  unto  the 
defendant,  on,  etc.,  for  the  term  of years,  then  next  ensu- 

(&)  Lord  Orwy  de  Wilton  vs.  Saxton,  6  Ves.  106  ;  Drury  vs.  Molins,  6  Ves. 
228. 

(c)    Pratt  vs.  Brett,  2  Mad.  62. 

{d)    BisJiop  of  London  vs.  Welh,  1  P.  Wms.  527. 

(e)  Kimpton  vs.  Eve,  2  Ves.  &  B.  349 ;  Steward  vs.  Winters,  4  Sandf.  Ch. 
587  ;  Baugher  vs.  Crane,  27  Md.  36 

(/)  Craig  vs.  The  People,  47  111.  487, 

(g)    Page  vs.  Davidson,  22  111.  112 


BILLS   TO   EESTEAIN   WASTE.  567 

Form  of  Bill. 

ing,  at  the  animal  rent  of dollars ;  and  the  defendant  did 

thereby  covenant,  promise  and  agree  wnth  your  orator,  that  he 
would,  during  the  said  term,  keep  the  said  premises  in  good 
repair,  and  manage  and  cultivate  the  said  farm  and  lands  in  a 
proper,  husbandlike  manner,  according  to  the  custom  of  the 
country,  as  by  the  said  indenture  of  lease,  reference  being  there- 
unto had,  will  more  fully  appear. 

Your  orator  further  represents,  that  the  defendant,  under  and 
by  virtue  of  the  said  indenture,  entered  upon  the  said  demised 
premises,  with  the  appurtenances,  and  became,  and  was  pos- 
sessed thereof  for  the  said  term  so  to  him  granted  thereof  by 
your  orator  as  aforesaid. 

And  your  orator  further  represents,  that  at  the  time  the 
defendant  entered  upon  the  said  premises,  the  same  were 
in  good  repair  and  condition,  and  your  orator  hoped  the 
defendant  would  so  have  kept  the  same,  and  have  cultivated 
the  said  lands  in  a  proper  and  husbandlike  manner,  according 
to  the  custom  of  the  country,  and  that  such  part  of  the  said 
premises  as  consisted  of  meadow  or  pasture  ground  would  have 
remained  so,  and  not  have  been  ploughed  up,  and  converted 
into  tillage ;  and  that  no  waste  would  have  been  committed  on 
the  said  premises.  But  now  so  it  is,  the  defendant  contriving 
how  to  wrong  and  injure  your  orator  in  the  premises,  pretends 
that  the  said  premises  are  now  in  as  good  repair  as  when  he 
entered  upon  the  same,  and  that  he  has  cultivated  the  said 
farm  and  lands  in  a  proper  and  husbandlike  manner,  and  that 
no  waste  has  been  committed  by  him  thereon.  Whereas,  your 
orator  charges,  that  the  said  premises,  and  the  buildings,  out- 
houses, gates,  stiles,  rails  and  fences,  were  in  a  good  and  perfect 
state  and  condition,  when  the  defendant  entered  upon  the  said 
premises,  but  now  are  very  ruinous  and  bad,  and  the  land  very 
much  deteriorated,  from  the  willful  mismanagement  and  im- 
proper cultivation  thereof,  by  the  defendant,  who  has  ploughed 

up  certain   fields   situated,  etc.,  containing   respectively 

acres,  and  has  otherwise  committed  great  spoil,  waste  and  de- 
struction in,  upon  and  about  the  said  premises. 

Your  orator  further  represents,  that  the  defendant  threatens, 
and  is  about  to  plough  up  the  remaining  pasture-fields  on  said 
premises,  and  to  commit  other  waste  upon  said  lands  and  appur- 
tenances, which  will  be  an  irreparable  injury  to  the  same ;  and 
that  the  defendant  is  so  insolvent  that  any  judgment  your 
orator  might  recover  against  him  in  an  action  at  law,  could  not 
be  collected  from  him. 

And  your  orator  further  charges,  that  the  defendant  ought  to 
put  the  said  premises  in  the  same  condition  they  were  in  when 


568  BILLS   TO   EESTEAIN   WxiSTE. 

Form  of  Bill. 

he  entered  thereon,  and  to  make  your  orator  a  reasonable  com- 
pensation for  the  waste  and  damage  done  or  occurred  thereto  ; 
and  that  the  defendant  ought  to  be  restrained  by  the  order  and 
injunction  of  this  honorable  court,  from  ploughing  up  the 
remaining  pasture-fields  upon  said  premises,  which  he  threatens 
to  do,  and  also  restrained  from  committing  any  farther  or  other 
"waste,  spoil,  or  destruction,  in  and  about  or  to  the  said  estate 
and  premises  or  any  part  thereof. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity  ;  and  to  the  end  that 
the  said  C.  D.,  who  is  made  party  defendant  to  this  bill,  may 
be  required  to  make  full  and  direct  answer  to  the  same ;  hut 
not  under  oatli^  the  answer  under  oath  heing  hereby  waived  / 
and  that  upon  the  final  hearing  hereof,  the  defendant  may  be 
decreed  to  put  the  said  premises  into  such  repair  and  con- 
dition, in  every  respect,  as  far  as  circumstances  will  permit,  as 
the  same  were  in  at  the  time  he  entered  upon  the  same  under 
said  lease  as  aforesaid  ;  and  to  make  a  reasonable  compensation 
to  your  orator  for  all  wastes  done,  committed  or  sufiered  by 
him  on  the  said  premises,  and  all  damages  occasioned  thereto 
by  his  mismanagement  or  neglect ;  and  that  he  may  be  decreed 
to  keep  the  said  premises  in  good  and  sufiicient  repair  and 
condition  during  the  remainder  of  his  time  therein,  and  to 
manage  and  cultivate  said  farm  and  lands  in  a  proper  and  hus- 
bandlike manner,  according  to  the  custom  of  the  country ; 
and  that  he  may  be  restrained  by  the  order  and  injunction  of 
the  court  from  ploughing  up  the  said  remaining  pasture-fields 
forming  part  of  said  demised  premises,  and  from  committing 
or  permitting  any  further  waste  or  spoil  in,  on  or  to  the  said 
premises,  or  any  part  thereof;  and  that  your  orator  may  have 
such  other  and  further  relief  in  the  premises  as  equity  may 
require  and  to  your  honor  shall  seem  meet. 

May  it  please,  etc.  {Conclude  with  a  prayer  for  summons 
and  injunction,  and  affidavit  as  in  No.  IJfS,  ante,  page  JfiG.') 


CHAPTER   XXXYIII. 


BILLS    RELATING    TO    TRUSTS. 


Section  1.    Nature  of,  etc. 
2.    Form  op  Bills. 


SECTION  I. 
NATURE    OF,    ETC. 

Cbaiiceiy  always  has  jurisdiction  to  enforce  a  trust,  and  for 
this  purpose  may  appeal  to  the  conscience  of  the  trustee ;  and, 
although  the  trust  may  be  established  by  other  evidence,  this 
does  not  impair  the  jurisdiction  of  a  court  of  chancery  to 
enforce  the  trust,  {a) 

If  a  trustee  neglects  his  duties  as  trustee,  a  court  will  remove 
him  and  appoint  another,  (b) 

While  a  court  of  equity  will  not  enforce  the  acceptance  of  a 
trust,  it  will,  when  it  is  voluntarily  assumed,  enforce  a  faithful 
execution  of  it,  for  the  preservation  of  rights  depending  upon 
and  derivable  from  it.  (c) 

Where  a  conveyance  is  made  to  several,  in  trust,  the  failure 
of  one  of  the  co-trustees  to  act  will  not  defeat  the  conveyance. 
In  such  a  case  equity  will  entertain  jurisdiction,  for  the  pur- 
pose of  preserving  the  trust,  (d) 

After  a  trust  has  been  declared  in  a  deed,  the  grantor,  by 
express  agreement  or  otherwise,  has  no  power  to  alter  and 
change  the  terms  or  conditions  of  the  trust.     The  beneficiaries 

(a)  Coates  vs.  Woodworth,  13  111.  654 ;  Norton  vs.  Hixon,  25  111.  440  ;  see 
Boyle  vs.  Murphy,  22  111.  502. 

(b)  Lill  vs.  Neafie,  31  111.  101 ;  see  Attorney  General  vs.  Garrison,  11 
Mass.  223. 

(c)  Cooper  vs.  McClun,  16  111.435;  see  Mcholl  vs.  Ogden,  29  111.323; 
Dorsey  vs.  Garey,  30  Md.  489. 

{d)  Mcholl  vs.  Miller,  37  111.  388 ;  McCosker  vs.  Brady,  1  Barb.  *  'h.  R. 
329. 


670  BILLS  KELATIXG   TO   TRUSTS. 

Nature  of,  etc. 

take  by  the  deed  a  vested  interest  that  is  not  subject  to  the 
control  of  the  grantor,  nor  to  any  change  by  the  trustees,  {e) 

In  all  cases,  in  order  to  invoke  the  interposition  of  a  court 
of  equity,  the  trust  and  the  abuse  of  it  must  be  clearly  estab- 
lished in  accordance  with  the  rules  by  which  courts  are  gov- 
erned in  administering  justice,  {f) 

'Courts  of  chancery  have  power,  in  cases  of  necessity',  to  order 
a  disposition  of  trust  estates  which  is  not  in  accordance  with 
the  provisions  of  the  deed  creating  the  trust.  This  power  will, 
however,  be  exercised  with  great  caution ;  and  it  is  the  duty 
of  the  court,  when  unforeseen  exigencies  arise,  which  make  its 
exercise  necessary,  to  place  itself  in  the  position  of  the  creator 
of  the  trust,  and  to  do  as  he  would  have  desired  if  he  had  an- 
ticipated the  existing  circumstances,  {g) 

Where  the  sole  trustee  for  infants,  appointed  under  a  will, 
dies,  and  the  will  does  not  provide  for  the  appointment  of  a 
successor,  a  court  of  equity  will  appoint  one.  (A)  And  where 
it  was  shown  that  the  cestui  que  trust  was  prohibited  by  the 
laws  of  the  state  from  coming  within  its  limits,  the  court  sub- 
stituted for  such  trustee,  a  person  living  in  the  state  where  the 
cestui  que  trust  resided,  {i) 

Where  an  estate  is  given  to  trustees,  to  be  disposed  of  by 
them  at  their  discretion  for  \\\q,  support  of  a  cestui  que  trusty  a 
court  of  equity  will  not  interfere  to  control  that  discretion, 
unless  there  has  been  abuse  of  the  trust,  {j) 

{e)    McDonald  vs.  Starhey,  43  111.  442;  Padfield  vs.  Padfield,  72  111.  323. 

(/)  Happy  vs.  Morton,  33  111.  398;  see  Brunnenmeyer  vs.  Buhre,  32  111. 
183:  Marlow  vs.  Marlow,  77  111.  633. 

■{rj)  Curtiss  vs.  Bronm,  29  111.  201;  see  AJemany  vs.  Wensinger,  4:0  Cal. 
288;  Jenkins  vs.  Dolittle,  69  111.  415. 

{h)  Dunscomb  vs.  Diinscomb,  2  Hen.  &  M.  11;  Giiion  vs.  Pickett,  42  Miss. 
77;  Buchanan  vs.  Hart,  31  Texas,  647. 

(0  Ex  parte  Tunno,  1  Bailey,  Ch.  395;  see  Maxwell  vs.  Finnie,  6Coldw. 
Tenn.  534. 

{j)  Smith  vs.  Wildhani,  37  Conn.  384;  see  Adams  y^.  Adams,  79  111.  517; 
Steele  vs.  Clark,  77  III  471 ;  Emmons  vs.  Moore,  85  111.  304;  Atty.  Gen.  vs. 
III.  Ag.  College,  85  111.  516. 


BILLS   RELATING   TO   TRUSTS.  571 

Form  of  Bill  to  Remove  Trustee. 

SECTION   II. 
FORM    OF    BILLS. 

No. '210.  ■  Bill  to  remove  trustees,  for  injunction  and  receiver. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of — --, 

In  Chancery  sitting : 

Tour  orator,  A.  B.,  and  your  oratrixes,  B.  B.,  the  wife  of  A..  B., 
and  C.  B.,  the  daughter  and  only  child  of  A.  B.  and  B.  B.,  all 
of,  etc.,  respectfully  represent  unto  your  honor,  that  on,  etc.,  a  cer- 
tain deed  of  conveyance  of  that  date  was  executed  between  your 
orator,  A.  B.  and  your  oratrix,  B.  B.,  his  wife,  of  the  one  part, 
and  0.  D.  and  E.  F.,  of,  etc.,  the  defendants  hereinafter  named, 
of  the  other  part,  which  said  deed  is  in  the  words  and  figures 
and  to  the  purport  following,  that  is  to  say,  {Here  set  out  copy 
of  deed  verbatim,)  as  by  the  said  deed,  ready  to  be  produced 
in  court,  will  appear. 

Your  orator  and  oi-atrixes  further  represent,  that  the  defend- 
ant C  D.  has  principally  acted  in  the  trust  of  the  said  deed, 
and  has,  by  virtue  thereof,  from  time  to  time,  received  consid- 
erable sums  of  money  and  other  ellects,  but  he  has  applied 
a  small  part  thereof  upon  the  trusts  of  the  said  deed,  and  has 
applied  and  converted  the  residue  thereof  to  his  own  use ;  and, 
in  particular,  the  said  C.  D.  has,  within  a  few  months  past, 
received  a  considerable  sum  of  money  from  the  estate  and 
effects  of  the  said  D.  B.,  the  whole  of  which  he  applied  to  his 
own  use. 

Your  orator  and  oratrixes  further  represent,  that  they  have 
repeatedly  applied  to  the  defendants  for  an  account  of  the  said 
trust  property  received  and  possessed  by  them,  and  of  their 
application  thereof.  And  your  orator  and  oratrixes  well  hoped 
that  the  defendants  would  have  complied  with  such  reasonable 
request,  as  in  equity  they  ought  to  have  done.  But  now  so  it  is, 
the  defendants  combining  and  confederating,  and  contriving  so 
to  wrong  and  injure  your  orator  and  oratrixes  in  the  premises, 
absolutely  refuse  to  comply  with  such  requests ;  and  pretend 
that  the  trust  property  and  effects  possessed  and  received  by 
them  were  to  an  inconsiderable  amount,  and  that  they  liave 
duly  applied  the  same  upon  the  trusts  mentioned  in  said  deed. 
Whereas  your  orator  and  oratrixes  charge  the  contrary  of  such 
pretenses  to  be  the  truth ;  and  that  80  it  would  appear  if  the 


572  BILLS   KELATING   TO   TRUSTS. 


Form  of  Bill  to  Eemove  Trustee. 


defendants  would  set  forth,  as  they  ought  to  do,  a  full  and  true 
account  of  all  and  every  the  said  trust  property  and  effects 
which  they  have  respectively  possessed  and  received,  and  of 
their  application  thereof. 

Your  orator  and  oratrixes  further  represent,  that  the  de- 
fendant C.  D.  threatens  and  intends  to  use  other  parts  of  the 
said  trust  property,  and  to  apply  the  same  to  his  own  use,  and 
will  do  so,  unless  he  is  restrained  therefrom  by  the  injunction 
of  this  court ;  that  both  said  defendants  ought  to  be  removed 
from  being  trustees  under  the  said  deed,  and  that  some  other 
person  or  persons  ought  to  be  appointed  by  this  court,  as  such 
trustees  in  their  place  and  stead;  and  that  in  the  meantime 
some  proper  person  ought  to  be  appointed  to  receive,  take 
charge  of  and  collect  the  said  trust  property. 

Forasmuch,  therefore,  as  your  orator  and  oratrixes  are  with- 
out remedy  in  the  premises,  except  in  a  court  of  equity ;  and 
to  the  end  that  the  said  C.  D.  and  E.  F.,  who  are  made  parties 
defendants  to  this  bill,  may  be  required  to  make  full  and  direct 
answer  to  the  same,  hut  not  tender  oath,  the  answer  under  oath 
heing  hereby  waived  ;  and  set  forth  a  true  and  perfect  account 
in  items  of  all  the  trust  funds  and  effects  received  by  them  re- 
spectively, by  virtue  of  the  said  deed,  and  of  their  application 
thereof;  and  that  upon  the  hearing  hereof  an  account  may  be 
taken  of  all  and  every  the  said  trust  property  and  effects,  which 
have,  or  but  for  their  willful  default  or  neglect  might  have, 
been  received  by  them,  or  either  of  them,  or  by  any  other 
person  or  persons,  by  their  or  either  of  their  order,  or  to  their 
or  either  of  their  use ;  and  also  an  account  of  their  application 
thereof ;  and  that  the  defendants  may  respectively  be  decreed  to 
pay  what  shall  appear  to  be  due  from  them  upon  such  account ; 
and  that  the  defendants  may  be  removed  from  being  trustees 
under  the  said  deed ;  and  that  two  other  persons  may  be  ap- 
pointed trustees  under  the  said  deed  in  their  place  and  stead ; 
and  that  in  the  meantime  some  proper  person  may  be  appointed 
to  receive  and  collect  the  said  trust  estate  and  effects ;  and  that 
your  orator  and  oratrixes  may  have  such  other  and  further  relief 
in  the  premises  as  equity  may  require  and  to  your  honor  shall 
seem  meet.  May  it  please  your  honor,  etc.  {Here  insert 
prayer  for  injunction  and  summons  and  affidavit,  as  in  JVo. 
128,  ante,  page  34£.) 


BILLS  KELATING   TO   TEUSTS.  573 

Form  of  Bill  for  Appointment  of  New  Trustee,  etc. 

No.  ^11.     Bill  for  the  aj)pointm.ejit  of  a  new  trustee  under 
marriage  settlement. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting : 

Your  orator  A.  B.,  and  oratrix  B.  B.,  his  wife,  and  your 
orators  C.  B.  and  D.  B.,  minors,  under  the  age  of  twenty-one 
years,  by  the  said  A.  B.,  their  father  and  next  Iriend,  and  your 
orator  E.  F.,  all  of,  etc.,  respectfully  represent  unto  your  honor, 
that  on,  etc.,  your  orator  A.  B.  and  oratrix  B.  B.,  then  B.  E., 
being  about  to  be  united  in  the  bonds  of  matrimony,  entered 
into  an  ante-nuptial  contract  or  marriage  settlement,  signed 
by  each,  and  bearing  date  on  that  date,  which  is  in  the  words 
and  figures  and  to  the  purport  following,  that  is  to  say :  {Here 
i/nsert  copy  of  marriage  settlement  verbatim,)  as  by  the  said 
instrument,  ready  to  be  produced  in  court,  will  appear. 

Your  orators  and  oratrix  further  represent,  that  the  said  ante- 
nuptial contract  or  marriage  settlement  contains  no  power  or 
authority  to  appoint  a  new  trustee  in  the  place  or  stead  of 
either  of  the  said  trustees  therein  named,  who  should  decline 
to  act  in  the  said  trusts,  or  be  desirous  to  be  removed  there- 
from, as  by  the  said  instrument  will  appear. 

Your  orators  and  oratrix  further  represent,  that  the  said  in- 
tended marriage  was  soon  afterwards,  to-wit,  on,  etc.,  had  and 
solemnized  between  your  orator  A.  B.  and  oratrix  B.  B. ;  and 
that  your  orators  C.  B.  and  D.  B.  are  the  only  children  born  of 
such  marriage.  That  the  said  G.  H.,  the  defendant  hereinafter 
named,  one  of  the  trustees  named  in  the  said  instrument,  as 
co-trustee  of  your  orator  E.  F.,  declines  to  act  in  the  trust  of 
the  said  instrument,  and  is  desirous  to  be  relieved  and  dis- 
charged therefrom,  but  by  reason  that  no  power  is  reserved  in 
the  said  instrument  for  the  appointment  of  a  new  trustee,  your 
orators  and  oratrix  are  advised  that  he  cannot  be  discharged 
from  such  trust,  nor  any  new  trustee  appointed  in  his  stead, 
without  the  aid  of  a  court  of  equity. 

Forasmuch,  therefore,  as  your  orators  and  oratrix  are  without 
remedy  in  the  premises,  except  in  a  court  of  equity  ;  and  to  the 
end  that  the  said  G.  H.,  who  is  made  party  defendant  to  this 
bill,  may  be  required  to  make  full  and  direct  answer  to  the 
same,  hut  not  under  oath.,  the  answer  under  oath  being  hei'eby 
waived  J  and  that  the  court  may  appoint  a  new  trustee  under  the 
said  marriage  settlement,  in  tlie  place  and  stead  of  the  defend- 
ant; and  that  the  defendant  may  be  decreed  to  join  in  such 


674  BILLS   EELATI^G   TO   TKUSTS. 

Form  of  Bill  for  Appointment  of  New  Trustee,  etc, 

instrument  or  instruments  as  may  be  necessary  to  convey  or 
release  the  said  trust  premises  to  your  orator  E.  F.,  his  co- 
trustee, and  such  new  trustee  upon  the  trusts  of  the  said  mar- 
riage settlement ;  and  that  thereupon  the  defendant  may  be 
discharged  from  the  trusts  of  the  said  instrument ;  and  that 
your  orators  and  oratrix  may  have  such  other  and  further  relief 
in  the  premises  as  equity  may  require  and  to  your  honor  shall 
seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 
chancery,  directed  to  the  sheriff  of  the  said  county  of ,  com- 
manding him  that  he  summon  the  defendant  G.  H.  to  appear 

before  the  said  court,  on  the  first  day  of  the  next term 

thereof,  to  be  held  at  the  court  house  in ,  in  the  county  of 

aforesaid,  then  and  there  to  answer  this  bill. 

,  Sol.  for  Gomplaincmts. 


CHAPTER   XXXIX. 

PEOCEEDINGS    TO    ENFORCE    MECHANIC'S    LIEN. 


ion  1. 

Nature  op. 

2. 

Where  a  Lien  is  Given. 

3. 

The  Contract  upon  which  it  is  Founded. 

4. 

Discharge  of  Lien. 

5. 

Limitation  of  Lien. 

6. 

Incumbrances  and  Other  Liens. 

7. 

Sub-Contractor's  Lien. 

8. 

Bells  and  Petitions. 

9. 

Proceedings  Upon. 

10. 

Amendments. 

11. 

Answer. 

13. 

Cross-Bill. 

13. 

Decrees. 

14. 

Costs. 

SECTION  I. 

NATURE    OF, 

Proceedings  to  enforce  mechanics'  liens  being  in  derogation 
of  the  common  law,  and  deriving  all  their  validity  from  the 
statutes,  must,  in  all  essential  particulars,  conform  to  the 
requirements  of  the  statutes. 

The  statutes  in  reference  to  liens  have  been  thoroughly 
revised  by  the  legislature  at  its  adjourned  session  of  1874,  and 
the  mode  of  proceeding  is  plainly  pointed  out  in  its  numerous 
provisions. 

The  pleadings  are  made  up  as  in  other  cases  in  chancery, 
and  the  practice  and  proceedings  are,  in  the  main,  governed  by 
the  same  rules  as  in  other  equitable  suits,  {a) 

The  mechanic's  lien  law  only  applies  to  individuals  and 
private  corporations ;  it  does  not  apply  to  work  done  on  state, 
county,  city  or  other  public  corporntions.  (x) 

(a)  Kimball  vs.  Cook,  1  Gilra.  430;  Sutherland  vs.  Ryerson,  24  111.  518; 
Brady  Y&.  Anderson,  24  111.112;  Hatnilton  ys.  Dunn,  22  III.  259;  West  vs. 
Fleming,  18  111.  248. 

{x)  TJionuis  \s.  Ind.  University,  71  111.  310;  Board  of  Ed.  vs.  Neiden- 
herger,  78  111.  58;  Thomas  vs.  Urbana  School  Dist.,  71  111.283;  Bouton  vs. 
Supervisors  etc.,  84  111.  384. 


576  MECHANIC'S   LIEN. 

Where  a  Lien  is  given. 


SECTION   II. 
WHEKE   A   LIEN    IS    GIVEN. 

The  revised  act  of  1874  provides, 

(§  1.)  "  That  any  person  who  shall,  by  contract,  express  or 
implied,  or  partly  expressed  and  partly  implied,  with  the 
owner  of  any  lot  or  piece  of  land,  furnish  labor,  or  material,  or 
service  as  an  architect  or  superintendent,  in  building,  altering, 
repairing  or  ornamenting  any  house  or  other  building  or 
appurtenances  thereto  on  such  lot,  or  upon  any  street  or  alley, 
and  connected  with  such  building  or  appurtenance,  shall  have 
a  lien  upon  the  whole  of  such  tract  of  land  or  lot,  and  upon 
such  house  or  building  and  appurtenances  for  the  amount 
due  to  him  for  such  labor,  material  or  services." 

House  painters  are  within  the  protection  of  the  mechanic's 
lien  law,  which  secures  to  persons  who  furnish  labor,  materials 
for  erecting,  etc.,  a  building.  (Z») 

The  lien  commences  on  the  delivery  of  the  materials  or  the 
performance  of  the  labor,  and  not  from  the  date  of  the  con- 
tract. It  is  not  the  contract  which  creates  the  lien,  but  the 
use  of  the  materials  or  labor  furnished  under  a  contract  for 
that  purpose,  (c) 

If  the  materials  furnished  and  used  become  severed  from  the 
freehold  by  fire,  the  lien  is  not  thereby  destroyed,  {d) 

There  must  be  an  actual  use  of  the  materials  or  labor  on  the 
building,  or  the  lien  will  not  attach,  {e)  Where  lumber  and 
materials  are  furnished  on  an  open  account,  without  reference 
to  its  being  used  in  any  particular  building,  the  lien  will  not 
be  enforced.  The  contract  must  refer  to  some  particular  build- 
ing in  order  that  the  lien  may  take  eifect.  {f) 

In  a  proceeding  to  establish  a  lien  to  secure  payment  for 

(h)   Martine  vs.  Nelson,  51  111.  422. 

{c)  McLaganva.  Brown,  11  111.519,  526;  Williams  vs.  Chapman,  11 1\\. 
425;  Hunter  vs.  Blanchard,  18  111.  318. 

{(I)  Gatij  vs.  Casei),  15  111.  190;  Steigleman  vs.  McBride,  17  111.  300; 
Sontag  vs.  Brennen,  75  111.  279. 

(e)    Hunter  vs.  Blanchard,  18  111.  318. 

(/)  Hill  vs.  Bishop,  25  111.  349;  Burkhart  vs.  Reisig,  24  111.  582. 


MECHANIC'S   LIEN.  577 

Where  a  Lien  is  given  —  Extent  of,  etc. 

lumber  sold  by  the  complainant  to  the  defendant,  the  evidence 
showed  that  the  lumber  was  used  in  completing  the  building 
on  the  defendant's  premises,  and  that  it  was  furnished  for  that 
purpose  at  his  request.  This  was  regarded  as  sufficient  to 
bring  the  case  within  the  statute  of  1861.  {g) 

Suits  hy  and  against  administrators,  etc. — The  statute  pro- 
vides that, 

(§  26.)  "  Suits  may  be  instituted  under  the  provisions  of  this 
act,  in  favor  of  administrators  or  executors,  and  may  be  main- 
tained against  the  representatives  in  interest  of  those  against 
whom  the  cause  of  action  accrued ;  and  in  suits  instituted 
under  the  provisions  of  this  act,  the  representatives  of  any 
party  who  may  die  pending  the  suit,  shall  be  made  parties." 

Estate  to  which  lien  attaches. — The  statute  provides  that, 

(§  2.)  "  The  lien  provided  for  in  sections  one  and  twenty- 
nine  of  this  act  shall  extend  to  an  estate  in  fee,  for  life,  for 
years,  or  any  other  estate,  or  any  right  of  redemption  or  other 
interest  which  such  owner  may  have  in  the  lot  or  land  at  the 
time  of  making  the  contract." 

A  widow's  dower  cannot  be  affected  by  a  mechanic's  lien.  (A) 
But  where  the  contract  was  made  by  the  husband,  for  a  build- 
ing on  the  wife's  separate  property,  with  her  knowledge,  appro- 
bation and  consent,  the  property  is  subject  to  the  lien.  (^) 

A  contract  with  an  infant  is  not  binding  upon  him,  and  there 
can  be  no  lien  on  his  land  for  labor  or  materials,  {j) 

Extent  of  lien. — The  statute  provides  that, 

(§  21.)  "  Whatever  right  or  estate  such  owner  had  in  the 
land  at  the  time  of  making  the  contract,  may  be  sold,  and  the 
proceeds  of  the  sale  applied  according  to  the  provisions  of  thia 
act."  {h) 

(g)    Corey  vs.  Croskey,  57  111.  251. 
(A)   SJuieffer  vs.  Weed,  3  Gilm.  511. 

(t)    Schwartz  vs.  Saunders,  4C>  111.  18 ;  see  Baxter  va.  Sutchings,  49  111.  116. 
ij)  McCarty  vs.  Carter,  49  111.  53. 

{k)    See  Kidder  vs.  AfioUz,  3G  111.  478 ;  Donaldson  vs.  Holmes,  23  111.  85. 
37 


578  MECHANIC'S   LIEN. 

Where  a  Lien  is  given  —  Extent  of  Lien. 

If  the  person  who  procures  the  work  to  be  done,  or  materials 
to  be  furnished,  has  any  estate  less  than  a  fee  simple,  or  if  the 
lands  are  incumbered  in  any  way,  the  person  who  procured  the 
work  to  be  done,  or  materials  to  be  furnished,  will,  neverthe- 
less, be  considered  the  owner  to  the  extent  of  his  interest  or 
right  in  the  premises ;  and  the  lien  will  bind  his  whole  estate 
or  title  in  the  same  manner  that  a  mortgage  would  have  done, 
and  his  whole  estate  may  be  sold  and  the  proceeds  applied  to 
pay  the  debts  and  liens  on  the  same.  {I) 

Where  A.  bought  land  and  took  only  a  contract  for  a  deed 
when  he  paid  the  purchase  money,  and  afterwards,  with  the 
knowledge  of  his  vendor,  contracted  for  the  erection  of  a  house, 
it  was  held  that  he  was  the  owner  within  the  meaning  of  the 
statute ;  and  in  this  case  the  court  ordered  the  land  to  be  sold 
and  the  mechanics  to  be  first  paid  out  of  the  proceeds,  and  the 
balance  to  the  vendor  of  the  land.  (7?^) 

The  fact  that  only  one  of  the  defendants  owned  the  land  will 
not  defeat  the  lien,  (n)  And  where  one  member  of  a  firm 
owns  a  lot,  and  the  firm  ordered  materials  and  made  the  im- 
provement, the  lien  would  hold,  notwithstanding  the  title  was 
in  one  member,  and  a  note  was  given  by  the  firm  in  payment 
for  such  materials,  (o) 

Where  the  real  owner  of  land  stands  by  and  suflfers  another 
to  contract  for  the  building  of  a  house  upon  it,  he  will  be 
estopped  from  setting  up  title  to  defeat  the  lien.  (^:?) 

A  person  in  possession  of  public  lands  has  an  estate  in  the 
premises  subject  to  a  mechanic's  lien,  (q)  but  the  decree  can 
only  affect  the  interest  which  the  defendant  has  in  the  pro- 
perty, (r) 

Where  labor  or  materials  are  furnished  on  separate  lots,  the 


(Z)     Turm'n  vs.  Saunders,  4  Sciuii.  531 ;  Dohschuets  vs.  HolUday,  82  111.  372. 
(m)  Donaldson  vs.  Holmes,  23  111.  85. 

{n)   Roach  vs.  Ghapin,  27  111.  197  ;  Van  Court  vs.  Buslinell,  21  III.  626. 
(p)    Croslccy  vs.  Corey,  48  111.  444. 

(p)  Donaldson  vs.  Holmes,  2d  111.85;  Higgin  xa.  Ferguson,  14  111.270; 
Schwartz  vs.  Saunders,  46  111.  18 ;  Baxter  vs.  Hutchings,  49  111.  116. 
(g)    Turncy  vs.  Saunders,  4  Scam,  527. 
(r)    Garrett  vs.  Slcrenson.  3  Gilm.  261;  Jndson  vs.  Stephens.  75  111.  255. 


MECHANIC'S   LIEN.  579 

Contract  upon  which  it  is  Founded  —  Implied  Contract,  etc. 

lien  will  be  against  each  lot  separately,  for  the  amount  of  labor 
or  materials  furnished  on  each  respectively.  But  where  they 
are  furnished  to  build  one  block,  all  under  one  roof,  all  compact 
as  one  building,  though  covering  more  than  one  lot,  it  waa 
held  proper  to  decree  a  lien  against  the  entire  block  which  the 
building  covered,  (s) 


SECTION  III. 
THE   CONTRACT    UPON    WHICH   IT   IS    FOUNDED. 

Within  what  time  to  he  comjpleted. —  The  statute  provides 
that, 

(§  3.)  "  When  the  contract  is  expressed,  no  lien  shall  be 
created  under  this  act,  if  the  time  stipulated  for  the  completion 
of  the  work  or  furnishing  materials  is  beyond  three  years  from 
the  commencement  thereof,  or  the  time  of  payment  beyond  one 
year  from  the  time  stipulated  for  the  completion  thereof.  If 
the  work  is  done  or  materials  are  furnished  under  an  implied 
contract,  no  lien  shall  be  had  by  virtue  of  this  act,  unless  the 
work  shall  be  done  or  materials  be  furnished  within  one  year 
from  the  commencement  of  the  work  or  delivery  of  the  mate- 
rials." 

Where  there  was  an  expressed  contract,  it  was  held  that  the 
time  for  completing  the  work  or  furnishing  the  materials  should 
be  specified  in  the  contract  or  the  lien  would  not  attach,  if) 

Implied  contracts. — The  contract  must  have  reference  to 
some  particular  tract  of  land  or  town  lot,  in  order  that  a  lien 
may  take  effect,  {u)  But  where  a  contract  is  made  to  faraish 
materials  for  a  building  in  process  of  erection,  it  is  sufficient, 
although  the  ground  upon  which  it  is  erected  is  not  described. 
Where  materials  are  furnished  and  placed  in  a  building,  if  there 

(s)    James  vs.  Hambleton,  43  111.  310. 

(t)  Cook  vs.  Vreeland,  21  111.  43G;  Senior  vs.  Brehnar,  23  111.  252;  3Ioser 
vs.  Maff,  24  111.  198;  Coburn  vs.  Ti/ler,  41  111.  354;  Baxter  vs.  Hutchings, 
49  111.  116;  see  Clark  vs.  Manninfj,  90  111.  380. 

(m)   BurkhaH  vs.  Reisig,  24  111.  532. 


580  MECHANIC'S  LIEN. 

Contract  on  which  it  is  Founded  —  Discharge  of  Lien. 

is  nothing  showing  a  different  intention,  a  jury  would  be  war- 
ranted in  finding  that  they  were  furnished  to  be  used  in  such 
building,  {v) 

The  law  implies  a  contract  to  pay  for  the  work  when  it  shall 
be  done,  if  other  terms  are  not  specified,  (w) 

Owner  of  la/nd  failing  to  comply  with  contract. — The  statute 
provides  that, 

(§  11.)  "  When  the  owner  of  the  land  shall  have  failed  to 
perform  his  part  of  the  contract,  and  by  reason  thereof  the  other 
party  shall,  without  his  own  default,  have  been  prevented  from 
performing  his  part,  he  shall  be  entitled  to  a  reasonable  com- 
pensation for  as  much  thereof  as  he  has  performed,  in  proportion, 
to  the  price  stipulated  for  the  whole,  and  the  court  shall  adjust 
his  claim  accordingly." 

Materials  furnished  contractors. — Where  a  party  contracts 
to  build  a  house,  and  other  parties  fui"nish  materials,  which  are 
used  in  the  building,  on  the  credit  of  the  contractor,  the  material 
men  have  no  lien  on  the  building  for  materials  so  furnished,  (a?) 


SECTION   IV. 
DISCHAKGE    OF    LIEN. 

A  note,  unless  taken  in  payment  absolutely,  will  not  dis- 
charge a  lien,  {y)  although  it  bears  interest,  {s)  But  where  a 
note  of  a  firm  is  taken  in  satisfaction  for  work  and  materials 
furnished  to  one  of  the  partners,  and  the  settlement  is  made  in 
accordance  with  the  usual  mode  of  doing  business  between  the 
parties,  and  the  property  against  which  the  lien  is  claimed  has 
been  sold  on  a  trust  deed,  a  mechanic's  lien  cannot  afterwards 
be  sustained  against  the  premises  for  said  work  and  mate- 
rials, {a) 

(v)    Power  vs.  McGord,  36  III.  214;  Martin  vs.  Ecersal,  lb.  223. 

\w)   Claycomb  vs.  Cecil,  27  111.  497. 

Ix)    Wetherill  vs.  Ohlendorf,  61  111.  283. 

{y)    Van  Court  vs.  Bushnell,  21  111.  626. 

(2)    Brady  vs.  Anderson,  24  111.  113 ;  see  Cowle  vs.  Varnum,  37  111.  181. 

(a)    Benneson  vs.  Thayer,  23  111.  374 ;  see  Groskey  vs.  Corey,  48  111.  442. 


MECHANIC'S   LIEN.  581 

Limitation  of  Lien,  etc. 

If  it  appears  that  a  petitioner  has  taken  other  security,  either 
on  property  or  of  persons,  to  satisfy  him  for  his  labor  and 
materials,  the  statutory  lien  will  be  discharged,  {h)  But  an 
agreement  to  extend  the  time  of  payment  beyond  a  year,  pro- 
vided a  mortgage  should  be  given,  will  not  defeat  a  mechanic's 
lien  if  the  mortgage  should  not  be  executed.  The  giving  of 
the  mortgage  in  such  case  is  a  condition  precedent,  (c) 

A  party  does  not  waive  his  right  to  enforce  a  mechanic's  lien 
by  commencing  a  suit  in  attachment,  as  they  are  concurrent 
remedies,  {d)  And  the  pending  of  a  proceeding  for  mechanic's 
lien  cannot  be  pleaded  in  abatement  of  an  action  to  recover  the 
value  of  the  labor  and  materials,  (e) 

SECTION  V. 
LIMITATION    or   LIEN. 

As  against  mvner. —  It  was  held,  under  the  law  of  1839,  that 
there  was,  under  the  law,  no  limitation  in  time  upon  the  right 
of  the  creditor  to  enforce  his  lien  against  the  debtor.  (/")  And 
there  is  no  change  in  that  respect  in  the  present  statute. 
As  against  creditors  etc. — The  statute  of  1879  provides  that 
(§  28.)  "  No  creditor  shall  be  allowed  to  enforce  the  lien 
created  under  the  foregoing  provisions,  as  against  or  to  the 
prejudice  of  any  other  creditor  or  any  incumbrance  or  pur- 
chaser, unless  suit  be  instituted  to  enforce  such  lien  within  six 
months  after  the  last  payment  for  labor  or  materials  shall  have 
become  due  and  payable."  {g) 

The  provision  of  the  statute,  that  if  the  mechanic  or  ma- 
terial man  fails  to  assert  his  rights  within  six  months  after  the 

(b)  Kinzeij  vs.  Thomas,  28  111.  503;  see  Conover  vs.  Warren,  1  Gilm.  501; 
Croskeij  vs.  Corey,  48  111.  444;  Gardner  vs.  Hall,  29  III.  277;  Clement  vs. 
Newton,  78  111.  427. 

(c)  Gardner  vs.  Hall,  29  111.  277. 

{d)    West  vs.  Fleming,  18  III.  248;  Culver  vs.  Elwell,  73  111.  536 

(e)    Delahay  vs.  Clement,  3  Scam.  201. 

(/)  Garrett  vs.  Stevenson,  3  Gilm.  261. 

{g)  Laws  of  1879,  p.  191;  Lunt  vs.  Stejjhens,  75  111.  507;  Reitz  vs.  Coyer, 
83  111.  28;  Crowl  vs.  Nagle,  86  111.  437;  Rogers  vs.  Powell,  1  Bradwell,  App. 
'Ct.  R.  631. 


682  MECHANIC'S   LIEN. 

Incumbrances  and  other  Liens,  etc. 

last  payment  shall  have  become  due  under  his  contract,  the  lien 
created  by  the  statute  shall  not  prevail  against  the  rights  of 
creditors  of  the  party  with  whom  the  contract  was  made,  is  for 
the  benefit  of  the  creditors,  and  has  no  application  as  between, 
the  mechanic  or  material-man  and  the  principal  debtor.  (A) 


SECTION  VI. 

INCinVIBEANCES    AND    OTHEK    LIENS. 

Prior  incumbrances. — A  mechanic's  lien  takes  precedence- 
of  prior  incumbrances  to  the  extent  of  the  improvements  made 
under  such  contract.  (?)  An  incumbrancer  anterior  to  the 
mechanic's  lien  looks  to  the  premises  as  they  were  at  the  time 
of  his  incumbrance  for  the  satisfaction  of  his  debt,  and  the 
mechanic  or  material-man  to  the  additions  for  his,  unless  the 
proceeds  will  pay  both,  {j) 

The  statute  of  1874  provides  that, 

(§  17.)  "  1^0  incumbrance  upon  land  created  before  or  after 
the  making  of  a  contract  under  the  provisions  of  this  act  shall 
operate  upon  the  building  erected  or  materials  furnished  until 
the  lien  in  favor  of  the  person  doing  the  work  or  furnishing 
the  materials  shall  have  been  satisfied ;  and  upon  questions 
arising  between  previous  incumbrances  and  creditors,  the  pre- 
vious incumbrance  shall  be  preferred  to  the  extent  of  the  value 
of  the  land  at  the  time  of  making  the  contract,  and  the  court 
shall  ascertain,  by  jury  or  otherwise,  as  the  case  may  require,, 
what  proportion  of  the  proceeds  of  any  sale  shall  be  paid  to 
the  several  parties  in  interest." 

Rule  for  adjusting  conflicting  claims. — The  rule  for  the  ad- 
justment of  the  different  rights  of  parties  holding  separate  liens 
upon  property  which  is  sought  to  be  subjected  to  the  payment  of 

{h)   Van  Pelt  vs.  Dunford,  58  111.  145. 

(V)    Sliaeffer  vs.  Weed,  3  Gilm.  511 ;  Raymond  vs.  Ewing,  26  111.  343. 

(j)  Smith  vs.  Moore,  26  111.  392 ;  Brown  vs.  Moore,  lb.  421 ;  Croskey  vs. 
If.  W.  Manuf.  Co.  48  111.  481 ;  Rowett  vs.  Selbi/,  54  111.  151 ;  Raymond  va,. 
Ewing,  26  111.  329 ;  Oaty  vs.  Casey,  15  111.  190 ;  Lomax  vs.  Bore,  45  111.  380. 


MECHANIC'S   LIEN.  583 


Incumbrances  and  other  Liens  —  Conflicting  Liens. 


a  mechanic's  lien  is  this  :  JSTeither  prior  or  subsequent  incum- 
brances can  operate  upon  the  building  erected  or  the  materials 
furnished  to  the  prejudice  of  the  persons  performing  the  labor 
or  furnishing  the  materials ;  a  prior  incumbrance  shall  be  pre- 
ferred to  the  extent  of  the  value  of  the  land  at  the  time  of 
making  the  contract  for  the  erection  of  the  building,  and  he 
also  has  a  subsequent  lien  on  the  building,  subject  to  the  first 
lien  of  the  mechanic,  and  the  mechanic,  in  like  manner,  has  a 
prior  lien  on  the  building  and  a  subsequent  lien  on  the  land. 
Each  may  have  his  debt  satisfied  out  of  the  fund  upon  which 
he  has  a  first  lien,  and  if  that  should  be  insufiicient,  then  the 
residue  out  of  any  surplus  of  the  other  fund  which  might 
remain  after  satisfying  the  prior  lien  thereon.  (Jc) 

In  order  to  know  what  proportion  of  the  proceeds  of  the 
sale  of  the  premises  should  be  paid  to  the  prior  incumbrancer^ 
and  upon  the  mechanic's  claim  respectively,  the  court  should, 
by  a  jury  or  master,  ascertain  the  separate  value  of  the  land 
and  of  the  building,  and  direct  the  distribution  of  the  pro- 
ceeds according  to  the  respective  rights  of  the  parties  as  fixed 
by  the  foregoing  rule.  (J) 

Conflicting  liens. —  The  statute  provides  that, 

(§  14.)  "  Upon  questions  arising  between  difi^erent  creditors 
having  liens  under  this  act,  no  preference  shall  be  given  to  him 
whose  contract  was  first  made. 

(§  15.)  "  The  court  shall  ascertain  the  amount  due  each 
creditor,  and  shall  direct  the  application  of  the  proceeds  of  sales 
to  be  made  to  each  in  proportion  to  their  several  amounts."  {m) 

It  is  suggested  as  a  better  practice  to  impanel  a  jury  to  find 
the  amount  due  each  claimant,  as  if  there  were  separate  pro- 
ceedings ;  but  where  there  ^re  few  claimants,  and  there  is  no 

(Jc)  North  Preshijterian  Church  of  Chicago  ys.  Jevne,  32  111.  214;  Crosket/ 
vs.  N.  W.  Manuf.  Co.,  48  HI.  481;  Dinghdme  vs.  Hershman,  53  111.  280; 
Hoiretf  vs.  Selbg,  54  111.  151 ;  Traci/  vs.  Rogers,  69  111.  662;  Lunt  vs.  Stephens, 
75  111.  507;  Grundeis  vs.  Hartwell,  90  111.  324. 

{I)  N.  Pres.  Church  vs.  Jevne,  32  111.  214;  Croskei/  vs.  N.  IF.  Mmiuf. 
Co.,  48  111.  481 ;  see  Rogers  vs.  Powell,  1  Bradwell,  App!  C.  R.  631. 

(/«)  Power  vs.  McCord,  36  111.  214;  Croshey  vs.  Corey,  48  111.  442;  see 
Raymond  vs.  Ewing,  26  III.  329:  Buchter  vs.  Dew,  39  111.  40. 


584  MECHANIC'S   LIEN. 

Conflicting  Liens,  etc. 

complication,  no  objection  is  perceived  to  submitting  all  the 
claims  to  the  same  jury,  (n) 

Where  claims  are  not  due. —  The  statute  provides  that, 
(§  IG.)  "  Parties  entitled  to  liens  under  this  act,  whose 
claims  are  not  due  or  payable  at  the  time  of  the  commencement 
of  suit  by  any  other  party,  shall  be  permitted  to  become  parties 
to  the  suit,  and  their  claims  shall  be  allowed,  subject  to  a  reduc- 
tion of  interest  from  the  date  of  judgment  to  the  time  such  claim 
is  due  or  payable."  {o) 

Parties  claiming  liens  may  contest  each  otlier's  rights. —  It 
is  provided  that, 

(§  18.)  "  Parties  claiming  may  contest  each  other's  rights,  as 
well  with  respect  to  amount  due,  as  with  respect  to  their  right 
to  the  benefit  of  the  lien  hereby  created ;  and  upon  all  questions 
made  by  parties,  the  court  shall  require  issues  of  law  or  fact  to 
be  formed  so  as  to  bring  about  speedy  decision  thereof," 

Fraudulent  incumhrances. —  The  statute  provides  that, 
(§  19.)  "  Any  incumbrance,  whether  by  mortgage,  judgment 
or  otherwise,  charged  and  shown  to  be  fraudulent  in  resjDect  to 
creditors,  may  be  set  aside  by  the  court,  and  the  premises  made 
subject  to  the  claim  of  the  complainant  or  petitioner,  freed  and 
discharged  from  such  fraudulent  incumbrance." 

Delay  in  one  case  not  to  delay  trial  in  respect  to  others. — 
It  is  provided  by  the  statute  that, 

(§  20.)  "  In  no  case  shall  the  want  of  preparation  for  trial  of 
one  claim  delay  the  trial  in  respect  to  others,  but  trial  shall  be 
had  upon  issues  between  such  parties  as  are  prepared,  without 
reference  to  issues  between  other  parties ;  and  when  one  credi- 
tor shall  have  obtained  a  decree  or  judgment  for  the  amount 
due,  the  court  may  order  a  sale  of  the  premises  on  which  the 
lien  operates,  or  a  part  thereof,  so  as  to  satisfy  the  judgment : 
Provided,  that  the  court  may,  for  good  cause  shown,  delay 

(ft)    rower  vs.  McCord,  36  111.  214. 

(o)    Sec  Kinney  vs.  Iludunt,  2  Scam.  -172. 


MECHANIC'S   LIEN.  585 

Sub-Contractor's  Lien. 

making  any  order  of  sale  or  distribution  until  the  rights  of  all 
parties  in  interest  are  ascertained  and  settled  by  the  court," 

SECTION  VII. 

sub-contractor's  lien. 

The  statute  provides  that, 

(§  29.)  "  Every  sub-contractor,  mechanic,  workman  or  other 
person,  who  shall  hereafter,  in  pursuance  of  the  purposes  of  the 
original  contract  between  the  owner  of  any  lot  or  piece  of 
ground,  or  his  agent  and  the  original  contractor,  perfoi-m  any 
labor  or  furnish  any  materials  in  building,  altering,  repairing, 
beautifying  or  ornamenting  any  house  or  other  building  or 
appurtenance  thereto,  on  such  lot  or  on  any  street  or  alley,  and 
connected  with  such  building  or  appurtenances,  shall  have  a 
lien  for  the  value  of  such  labor  and  materials  upon  such  house 
or  building  and  appurtenances,  and  upon  the  lot  or  land  upon 
which  the  same  stands,  to  the  extent  of  the  right,  title  and  in- 
terest of  such  owner  at  the  time  of  making  the  original  con- 
tract for  such  house  or  the  improvement ;  but  the  aggregate 
of  all  the  liens  hereby  authorized  shall  not  exceed  the  price 
stipulated  in  the  original  contract  between  such  owner  and  the 
original  contractor  for  such  improvement.  In  no  case  shall 
the  owner  be  compelled  to  pay  a  greater  sum  for  or  on  account 
of  such  house,  building  or  other  improvement  than  the  price 
or  sum  stipulated  in  said  original  contract  or  agreement :  Pro- 
vided., if  it  shall  appear  to  the  court  that  the  owner  and  con- 
tractor fraudulently,  and  for  the  purpose  of  defrauding  sub- 
contractors, fixed  an  unreasonably  low  price  in  the  original 
contract  for  the  erection  or  reparation  of  such  building,  then  the 
court  shall  ascertain  how  much  of  a  difierence  exists  between  a 
fair  price  for  the  labor  or  materials  used  in  said  building  or 
other  improvements,  and  the  sum  named  in  said  original  con- 
tract, said  difference  shall  be  considered  a  part  of  the  contract 
and  be  subject  to  a  lien ;  but  in  no  case  shall  the  original  con- 
tractor's time  or  profits  be  secured  by  this  lien,  only  so  fir  as 
the  sum  named  in  the  ori2:inal  contract  or  a<>-reement." 


586  MECHANIC'S   LIEN. 

Sub-Contractor's  Lien  —  Notice  to  Owner,  etc. 

Notice  to  he  given  to  owner. — (§  30.)  "  The  person  perform- 
ing such  labor,  or  furnishing  such  materials,  shall  cause  a  notice, 
in  writing,  to  be  served  on  such  owner  or  his  agent,  substan- 
tially in  the  following  form  : 

'  To :  Tou  are  hereby  notified  that  I  have  been  em- 
ployed by ,  to  {Here  state  whether  to  labor  or  furnish 

inaterials,  and  substantially  the  nature  of  the  undertaking  or 
demand)  upon  j^our  ijiere  state  the  building^  and  where  situ- 
ated., in  general  terms) ;  and  that  I  shall  hold  the  {J)uilding,  or 
as  the  case  moAj  be^  and  your  interest  in  the  ground  liable  for 
the  amount  that  is  {or  may  become)  due  me  on  account  thereof. 

[Date]  [Signature] '  " 

Copy  of  contract  to  be  served  on  owner. — (§  31.)  "  If  there  is 
a  contract  in  writing  between  the  original  contractor  and  the 
Bub-contractor,  a  copy  of  such  sub-contract,  if  the  same  can  be 
obtained,  shall  be  served  with  such  notice  and  attached  thereto, 
which  notice  shall  be  served  within  forty  days  from  the  com- 
pletion of  such  sub-contract,  or  within  forty  days  after  payment 
should  have  been  made  to  the  person  performing  such  labor  or 
furnishing  such  materials." 

Notice  to  be  filed  with  circuit  clerk^  etc. — (§  32.)  "  In  all  cases 
where  the  owner  cannot  be  found  in  the  county  in  which  said 
improvement  is  made,  or  shall  not  reside  therein,  the  person 
furnishing  labor  or  materials  shall  file  said  notice  in  the  office 
of  the  clerk  of  the  circuit  court,  who  shall  enter,  in  a  book  to 
be  kept  for  that  purpose,  alphabetically,  the  names  of  the  own- 
ers, and  opposite  thereto  the  names  of  the  persons  claiming 
liens,  for  which  the  clerk  shall  receive  a  fee  of  fifty  cents.  A 
copy  of  said  notice  shall  be  published  in  some  newspaper  printed 
in  said  county,  for  four  successive  weeks  after  filing  such  notice 
with  the  clerk  as  aforesaid.  If,  however,  there  is  no  paper 
published  in  said  county,  then  the  claimant  of  the  lien  shall 
post  notices  in  four  of  the  most  public  places  in  the  vicinity  of 
said  iraprovement." 

Extent  of  lien. — (§  33.)  "  No  claim  of  any  sub-contractor, 
mechanic,  workman,  or  other  person,  shall  be  a  lien  under 
section  twenty-nine  of  this  act,  except  so  far  as  the  owner  may 


MECHANIC'S  LIEN.  687 

Sub-Contractor'a  Lien,  etc, 

be  indebted  to  the  contractor  at  the  time  of  giving  such  notice, 
as  aforesaid,  of  such  claim,  or  may  become  indebted  afterward 
to  him  as  such  contractor." 

Owner  may  retain  money  to  pay  sub-contractor. — (§  34.) 
"  When  the  owner  or  his  agent  is  notified,  as  aforesaid,  he  may 
retain  from  any  money  due  or  to  become  due  the  original  con- 
tractor, an  amount  sufficient  to  pay  all  demands  that  are  or  will 
become  due  such  sub-contractor,  mechanic,  workman,  or  other 
person  so  notifying  him,  and  may  pay  over  the  same  to  the 
persons  entitled  thereto.  In  case  there  is  not  a  sufficient 
amount  due  to  such  original  contractor  to  pay  such  persons  so 
entitled  in  full,  the  same  shall  be  divided  and  paid  to  such 
persons  pro  rata,  in  proportion  to  the  amounts  due  them 
respectively  at  the  time  of  such  payment.  All  payments  so 
made  shall,  as  between  such  owner  and  contractor,  be  con- 
sidered the  same  as  if  paid  to  such  original  contractor." 

Statement  of  persons  employed  to  he  furnished  the  owner. — 
(§  35.)  "  The  original  contractor  shall,  as  often  as  requested, 
in  writing,  by  the  owner,  or  lessee,  or  his  agent,  make  out  and 
give  to  him  a  statement  of  the  number  of  persons  in  his 
employ,  and  sub-contractors,  giving  their  names  and  the  rate 
of  wages  or  tei'ms  of  contract,  and  how  much,  if  anything,  is 
due  to  them  or  any  of  tliem  —  which  statement  shall  be  made 
under  oath,  if  rc<juircd. 

(§  36.)  "  If  any  contractor  shall  fail  to  furnish  such  state- 
ment witliin  five  days  after  demand  made,  as  aforesaid,  he  shall 
forfeit  to  such  owner  the  sum  of  fifty  dollars  for  every  such 
off'ense,  which  may  l:>e  recovered  in  an  action  of  debt,  before  a 
justice  of  the  peace." 

When  suh-contr actor  may  enforce  lien. —  (§37.)  "If  the 
money  due  to  the  person  giving  such  notice  shall  not  be  paid 
within  ten  days  after  service  thereof,  as  aforesaid,  or  within  ten 
days  after  the  money  shall  become  due  and  payable,  and  any 
money  shall  then  be  due  from  such  owner  to  the  original  con- 
tractor, then  such  person  may  file  his  petition  and  enforce  his 


588  MECHANIC'S   LIEN. 

Sub-Contractor's  Lien,  etc. 

lien,  in  the  same  manner  as  hereinbefore  provided  in  case  of 
original  contractors ;  or  he  may  sue  the  owner  and  contractor 
jointly  for  the  amount  due  him,  in  any  court  having  jurisdiction 
of  the  amount  claimed  to  be  due,  and  a  personal  judgment  may 
be  rendered  therein  as  in  other  cases." 

Judgment  hefoj^e  justice  of  the  peace. — (§  38.)  "If  execution 
issued  on  a  judgment  obtained  before  a  justice  of  the  peace 
ghall  be  returned  not  satisfied,  a  transcript  of  such  judgment 
may  be  taken  to  the  circuit  court,  and  spread  upon  the  records 
thereof,  and  execution  issued  thereon  as  in  other  cases." 

Owner  ^  etc.,  may  file  hill,  etc. —  (§  39.)  "If  there  are  several 
liens,  under  section  twenty-nine,  upon  the  same  premises,  and 
the  owner,  or  any  person  having  such  lien,  shall  fear  that  there  is 
not  a  sufficient  amount  coming  to  the  contractor  to  pay  all  of 
such  liens,  such  owner,  or  any  one  or  more  persons  having  such 
lien,  may  file  his  or .  their  sworn  bill  or  petition  in  the  circuit 
court  of  the  proper  county,  stating  such  fact,  and  such  other  facts 
as  may  be  sufficient  to  a  full  understanding  of  the  rights  of  the 
parties.  The  contractor  and  all  persons  having  liens  upon,  or 
who  are  interested  in  the  premises,  so  far  as  the  same  are  known 
to  or  can  be  ascertained  by  the  claimant  or  petitioner,  upon 
diligent  inquiry,  shall  be  made  parties.  Upon  the  hearing,  the 
court  shall  find  the  amount  coming  from  the  owner  to  the 
contra  tor,  and  the  amount  due  to  each  of  the  persons  having 
liens ;  and  in  case  the  amount  found  to  be  coming  to  the  con- 
tractor shall  be  insufficient  to  discharge  all  the  liens  in  full,  the 
amount  so  found  in  favor  of  the  contractor  shall  be  divided 
between  the  persons  entitled  to  such  liens  pro  rata  in  propor- 
tion to  the  amounts  so  found  due  to  them,  respectively.  If  the 
amount  so  found  to  be  coming  to  the  contractor  shall  be  suffi- 
cient to  pay  such  liens  in  full,  the  same  shall  be  so  ordered. 
The  premises  may  be  decreed  to  be  sold  for  the  payment  of 
such  liens  as  in  other  cases." 

Proving  claims,  etc. —  (§  40.)  "All  persons  who  shall  be 
duly  notified  of  such  proceeding,  and  who  shall  fail  to  prove 


MECHANIC'S   LIEN.  589 

Sub-Contractor's  Lien  —  Contractors  may  give  Bond,  etc. 

their  claims,  whether  the  same  be  in  judgment  against  the 
owner  or  not,  shall  forever  lose  the  benefit  of  and  be  precluded 
from  their  liens  and  all  claims  against  the  owner. 

(§  41.)  "  Upon  the  filing  of  such  bill  or  petition,  the  court 
may,  on  motion  of  any  person  interested,  stay  any  further  pro- 
ceedings upon  any  judgment  against  the  owner  on  account  of 
Buch  lien." 

Contractor  may  give  hond^  etc. —  (§  42.)  "  Upon  entering 
into  a  contract  to  do  any  work  or  furnish  materials  for  which  a 
lien  might  accrue  under  section  one  of  this  act,  if  the  contractor 
will  enter  into  a  bond  with  the  owner,  for  the  use  of  all  persona 
who  may  do  work  or  furnish  materials  pursuant  to  such  con- 
tract, conditioned  for  the  payment  of  all  just  claims  for  such 
work  or  materials  as  they  become  due  (which  bond  shall  be  in 
such  an  amount,  not  less  than  the  price  agreed  to  be  paid  for 
the  performance  of  such  contract,  and  with  such  surety  as  shall 
be  approved  by  the  judge  of  the  circuit  court,  or  a  master  in 
chancery  of  said  court),  and  shall  file  the  same  in  tlie  ofiice  of 
the  clerk  of  said  court,  then  no  lien  shall  attach  in  favor  of 
such  sub-contractor,  mechanic  or  other  person. 

(§  43.)  "  A  like  bond  may  be  made  and  filed,  as  provided  in 
the  foregoing  section,  at  any  time  after  the  making  of  such 
contract,  and  shall  have  the  efi'ect  to  discharge  all  such  liens  as 
shall  have  accrued  before  the  filing  thereof,  and  to  prevent  the 
accruing  of  any  such  liens  tliereafter. 

(§  44.)  "  Any  person  having  a  claim  against  such  contractor 
for  work  done  or  materials  furnished  pursuant  to  such  contract 
may  put  the  said  bond  in  suit  for  his  use,  or  in  case  the  same 
shall  have  been  put  in  suit,  have  his  damages  assessed  as  in 
other  suits  upon  penal  bonds." 

Where  contractor  fails  to  complete  his  contract. —  (§  45.) 
"Should  the  original  contractor,  for  any  cause,  fail  to  com- 
plete his  contract,  any  person  entitled  to  a  lien  as  aforesaid, 
may  file  his  petition  in  any  court  of  record,  against  the  owner 
and  contractor,  setting  forth  the  nature  of  his  claim,  the  amount 
due,  as  near  as  may  be,  and  the  names  of  the  parties  employed 


690  MECHANIC'S   LIEN. 

Bills  and  Petitions. 

on  such  house  or  other  improvement  subject  to  liens;  and 
notice  of  such  suit  shall  be  served  on  the  persons' therein 
named  ;  and  such  as  shall  appear  shall  have  their  claims  adju- 
dicated, and  decree  shall  be  entered  against  the  owner  and 
original  contractor  for  so  much  as  the  work  and  materials  shall 
be  shown  to  be  reasonably  worth  according  to  the  original  con- 
tract price,  first  deducting  so  much  as  shall  have  been  rightfully- 
paid  on  said  original  contract  by  the  owner,  and  damages,  if 
any,  that  may  be  found  to  be  occasioned  the  owner  by  reason 
of  the  non-fulfillment  of  the  original  contract,  the  balance  to  be 
divided  between  such  claimants  in  proportion  to  their  respect- 
ive interests,  to  be  ascertained  by  the  court.  The  premises 
may  be  sold  as  in  other  cases  under  this  act. 

(§  46.)  "  'No  payments  to  the  original  contractor  or  to  his 
order  shall  be  regarded  as  rightfully  made,  if  made  in  violation 
of  the  rights  and  interests  of  the  persons  intended  to  be  bene- 
fited by  this  act." 

Limitation. —  (§  47.)  "  No  petition  shall  be  filed  or  suit 
commenced  to  enforce  the  lien  created  by  section  twenty-nine, 
unless  the  same  is  commenced  within  three  months  from  the 
time  of  the  performance  of  the  sub-contract,  or  dm'ing  the 
work  or  furnishing  materials,  as  aforesaid:  Provided,  if  any 
delay  in  filing  such  petition  or  commencing  suit  is  caused  in 
consequence  of  the  amount  not  being  due  the  original  con 
tractor,  the  time  of  such  delay  shall  not  be  reckoned." 

SECTION  VIII. 
BILLS    AND   PETITIONS. 

The  statute  of  1874  provides  that, 

(§  4.)  "  The  lien  given  by  this  act  may  be  enforced  by  bill 
or  petition  in  any  court  of  record  of  competent  jurisdiction 
in  the  county  in  which  the  land  or  lot,  or  some  part  thereof, 
lies. 

(§  5.)  "  The  bill  or  petition  shall  contain  a  brief  statement 
of  the  contract  on  which  it  is  founded,  if  expressed,  or  if  the 


MECHANIC'S   LIEN.  591 

Bill  or  Petition  —  Parties  to. 

work  is  done  or  materials  are  furnistied  under  an  implied  con- 
tract, the  bill  or  petition  shall  so  state,  and  shall  show  the 
amount  due  and  unpaid,  a  description  of  the  premises  which 
are  subject  to  the  lien,  and  such  other  facts  as  may  be  necessary 
to  a  full  understandino;  of  the  rights  of  the  parties." 

The  petition  or  bill  should  aver  that  the  times  for  delivery, 
performance  and  payment  are  within  the  several  periods  named 
by  the  statute ;  and  these  averments  must  be  proved,  so  that 
the  court  may  know  that  the  conditions  required  by  the 
statute  have  been  complied  with,  {p) 

The  bill  or  petition  must  show  that  the  work  was  completed ; 
and  a  contract  which  does  not  specify  a  time  within  which  the 
work  is  to  be  completed  and  the  money  is  to  be  paid,  is  defect- 
ive, {q)  So,  also,  in  regard  to  the  time  when  materials  were  to 
be  furnished  and  paid  for  under  the  agreement,  (r) 

If  the  claimant  is  entitled  to  interest,  he  should  claim  it  in 
his  bill  or  petition,  or  he  cannot  recover  it.  {s) 

Parties. — Suits  to  enforce  a  mechanic's  lien  being  a  chancery 
proceeding,  all  persons  interested  in  the  property  should  be 
made  parties,  {t)  And  pei'sons  not  parties  to  the  proceeding 
will  not  be  affected  by  it.  [u)  Thus  judgment  creditors  should 
be  made  parties,  if  it  is  designed  to  affect  or  defeat  their 
rights,  (-v) 

A  widow  is  not  a  proper  party  where  her  only  interest  in 
the  premises  is  her  dower.  {^) 

{p)  Cooh  vs.  Heald,  21  111.  429;  Phillips  vs.  Stone,  25  111.  77;  Columbus 
Mach.  M.  Co.  vs.  Darwin,  lb.  169;  Roivley  vs.  James,  31  111.  298;  Sutherland 
vs.  Rijerson,  24  111.  517;  Powell  vs.  Webber,  79  111.  134. 

((/)  Rogers  YS.  Ward,  23  111.  473;  Coo  A;  vs.  Ilcald,  21  111  429;  Burklmi 
vs.  Reisig,  24  111.  529;  Kinzetj  vs.  Thomas,  28  111.  502;  see  §  11  of  revised 
act  of  1874;  Grandies  vs.  HurtwcU.  90  111.  324. 

(r)  Cook  vs.  Rofinot,  21  111.  437;  Brady  vs.  Anderson,  24  111.  112;  Bush 
vs.  Connelly,  83  111.  448;  see  contra  Roach  vs.  Chapin,  27  111.  195. 

(s)    Prescott  vs.  Maxwell,  48  111.  82;  Mills  vs.  Heeney,  35  111.  173. 

(0    Lomax  vs.  Dore,  45  111.  379;  Greenleafvs.  Beebe,  80  111.  520. 

(w)  Sfeigleman  vs.  McBride,  17  111.  300;  Williams  vs.  Chapman,  lb.  422; 
Raijmond  vs.  Swing,  26  111.  329;  Meeks  vs.  Sims,  84  111.  422. 

(v)  McLagan  vs.  Brown,  11  111.  519;  see  Race  vs.  Sullivan,  1  Bradwell's 
App.  Ct.  R.  94. 

(tv)  Shaeffer  vs.  Weed.  3  Cilni.  511. 


592  MECHANIC'S   LIEN". 

Form  of  Bill  for  Lien,  on  Written  Contract. 

The  statute  provides  that, 

(§  12.)  "  In  proceedings  under  this  act  all  persons  interested 
in  the  subject  matter  of  the  suit,  or  in  the  premises  intended 
to  be  sold,  may,  on  application  to  the  court  wherein  the  suit  is 
pending,  be  made  or  become  parties  at  any  time  before  final 
judgment. 

(§  13.)  "Parties  in  interest,  within  the  meaning  of  this  act, 
shall  include  all  persons  who  may  have  any  legal  or  equitable 
claim  to  the  whole  or  any  part  of  the  premises  upon  which  a 
lien  may  be  attempted  to  be  enforced  under  the  provisions  of 
this  act." 

No.  'B12.     Bill  for  a  mechanic's  lien,  on  written  contract. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

Your  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  he  is  by  occupation  a  contractor  and  builder ;  that 
on,  etc.,  one  C.  D.,  of,  etc.,  one  of  the  defendants  hereinafter 
named,  applied  to  your  orator  to  build  for  him  a  dwelling- 
house,  upon  the  premises  hereinafter  named,  and  thereupon 
your  orator  and  the  said  C.  D.  entered  into  a  written  contract, 
with  drawings  and  specifications  attached,  in  the  words  and 
figures  as  follows,  to  wit :  {Here  set  out  copy  of  contract,  etc.,) 
as  will  appear  by  the  said  contract,  drawings  and  specifications 
ready  to  be  produced  in  court  upon  the  hearing  hereof. 

Your  orator  further  represents,  that  immediately  after  the 
making  of  said  contract,  and  in  compliance  with  the  terms 
thereof,  he  commenced  work  under  the  same,  on  the  following 
described  premises,  to  wit :  {Here  describe  the^remises  on  which 
huilding  was  erected^  the  said  C.  D.  being,  at  the  time  of  the 
making  of  the  said  contract,  and  still  is,  the  owner  of  the  said 
premises. 

Your  orator  further  represents,  that  he  did,  in  compliance 
with  the  said  contract,  within  the  time  therein  specified,  erect 
and  finish  for  the  said  C.  D.,  on  said  premises,  a  dwelling-house, 
and  did  furnish  all  the  necessary  materials  and  labor  for  that 
purpose,  and  did  in  all  respects  comply  with  the  terms  of  the 
said  contract,  and  the  specifications  and  drawings  thereto  at- 
tached, by  him  required  to  be  performed. 

Your  orator  further  represents,  that  in  accordance  \vith  the 
conditions  of  the  said  contract,  your  orator,  on,  etc.,  procured 


MECHANIC'S   LIEN.  595 

Form  of  Bill  for  Lien,  on  Written  Contract. 

from  E.  F.,  the  architect  and  superintendent  of  the  erection  of 
the  said  building,  a  certificate  in  writing  tluit  your  orator  had 
completed  his  part  of  the  said  contract  according  to  the  terms 
and  conditions  thereof,  which  said  certificate  is  now  in  the  pos- 
session and  control  of  the  said  C.  D. 

Your  orator  further  represents,  that  immediately  after  the 
completion  of  the  said  building,  to  wit,  on,  etc.,  the  said  C.  D. 
accepted  the  same,  and  took  possession  thereof,  and  has  ever 
since  occupied  the  same  with  his  family  as  a  dwelling-house. 

Your  orator  further  represents,  that  the  said  C.  D.  has  only 

paid  your  orator  the  sum  of dollars  on  said  contract,  and 

that  there  is  now  due  to  your  orator  thereon  the  sum  of 

dollars,  from  the  said  C.  D.,  together  with  interest  thereof  from, 
etc. ;  and  your  orator  attaches  hereto  a  schedule,  marked  A.,  as 
a  part  of  this  bill,  showing  the  amount  due  your  orator  under 
said  contract,  and  all  payments,  with  the  dates  thereof,  made 
by  the  said  C.  D.  to  your  orator. 

Your  orator  further  represents,  that  he  has  frequently  re- 
quested the  said  C.  D.  to  pay  the  said  sum  of dollars,  the 

balance  due  your  orator  from  him  as  aforesaid,  but  the  said  0. 
D.  has  neglected  and  refused  to  do  so ;  by  means  whereof  your 
orator  is  entitled,  mnder  the  statute  in  such  case  provided,  to  a 
lien  upon  the  said  premises  for  the  amount  due  your  orator  as 
aforesaid. 

Your  orator  further  represents,  upon  information  and  belief, 
that  G.  H.  and  L.  M.,  of,  etc.,  have  or  claim,  some  interests  in 
the  said  premises,  as  purchasers,  mortgagees,  judgment  cred- 
itors, or  otherwise,  the  precise  nature  whereof  is  unknown  to 
your  orator ;  but  such  interests,  if  any  there  be,  have  accrued 
since,  and  are  subject  to  the  lien  of  your  orator  as  aforesaid. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  G.  H.  and  L.  M.,  who  are  made  parties  defend- 
mts  to  this  bill,  may  be  reqiiired  to  make  full  and  direct  an- 
swer to  the  same,  but  not  under  oath,  the  answer  under  oath 
leing  hereby  waived  j  that  an  account  may  be  taken  in  this 
behalf  under  the  direction  of  the  court ;  that  your  orator  may 
be  decreed  to  be  entitled  to  a  lien  upon  the  said  premises  for 
the  amount  due  your  orator  under  the  said  contract,  in  pursu- 
ance of  the  statute  in  such  case  made  and  provided ;  and  that 
the  defendant  C.  D.  may  be  decreed  to  pay  your  orator  the 
amount  due,  by  a  short  day  to  be  fixed  by  the  court,  and  that 
in  default  of  such  payment  the  said  premises  may  be  sold,  as 
the  court  shall  direct,  to  satisfy  such  amount  and  costs ;  that  in 
case  of  such  sale  and  of  a  failure  to  redeem  therefrom  pursuant 


594  MECHANIC'S   LIEN. 

Petitioa  for  Lien,  on  Verbal  Contract. 

to  law,  the  defendants,  and  all  persons  claiming  through  or 
under  them,  after  the  commencement  of  this  proceeding,  may- 
be forever  barred  and  foreclosed  of  all  right  or  equity  of  re- 
demption of  the  said  premises ;  and  that  your  orator  may  have 
such  other  and  further  relief  in  the  premises  as  equity  may 
require  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor  to  grant  the  writ  of  summons  in 

chancery,  directed  to  the  sherilf  of  the  said  county  of , 

commanding  him  that  he  summon  the  defendants  C.  D.,  G.  H. 
and  L.  M.,  to  appear  before  the  said  court,  on  the  first  day  of 

the  next term  thereof,  to  be  held  at  the  court  house  in 

,  in  the  county  of aforesaid,  then  and  there  to  answer 

this  bill,  etc. 

{Add  schedule  A.) 

No.  '213.     Petition  for  meGhanids  lien,  on  verbal  contract. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois, 

The  petitioa  of  A.  B.  and  C.  D.,  of,  etc.,  partners  under  the 
name  and  style  of  B.  &  D.,  respectfully  represents,  that  your 
petitioners  are,  by  occupation,  builders  and  dealers  in  lumber 
and  other  building  materials,  and  their  place  of  business  is  in, 
etc.  Tliat  on  or  about,  etc.,  one  E.  F.,  who  is  made  party  de- 
fendant to  this  petition,  applied  to  your  petitioners  and  desired 
them  to  furnish  all  the  materials  and  labor  for,  and  to  build  for 
him  a  dwelling-house  on  the  following  described  lot,  to  wit : 
{Here  describe  the  premises  upon  which  building  was  erected j) 
owned  in  fee  simple  by  the  said  E.  F. ;  and  thereupon  a  verbal 
contract  was  entered  into  between  your  orators  and  the  said  E. 
F.,  by  which  your  petitioners  were  to  furnish  all  the  necessary 
materials,  as  follows,  to  wit :  {Here  describe  materials  to  be  used^ 
and  all  necessary  labor,  and  erect  for  the  defendant  a  dwelling- 
house  on  the  said  described  lot,  and  have  the  same  completed, 
ready  for  occupancy  by,  etc. ;  and  it  was  agreed  by  the  parties 
in  said  contract,  that,  etc.,  {Here  set  forth  the  terms  of  the  con- 
tract as  to  how  the  house  should  be  constructed,  finished^) 
and  it  was  further  stipulated  and  agreed  by  the  defendant  that 
he  would  pay  your  petitioners  for  such  materials,  and  all  neces- 
sary materials  and  labor  upon  said  building,  as  much  as  the 
same  were  reasonably  worth ;  and  that  the  defendant  would 
pay  to  your  petitioners,  as  the  work  progressed,  as  follows,  to 
wit :  {Here  insert  the  terms  of  payment^ 

Your  petitioners  further  represent,  that  they  did,  in  pursu- 
ance of  the  terms  of  said  contract,  at  once,  on  the  making  of 


MECHANIC'S   LIEN.  S'.io 


Petition  for  Lien,  on  Verbal  Contract. 


said  contract,  proceed  to  funiisli  a  large  amount  of  labor  and 
materials  for  the  construction  of  the  said  building;  a  particular 
bill  and  account  of  all  such  labor,  and  materials  furnished,  and 
used  in  the  construction  of  tlie  said  dwelling-house,  is  liereto 
attached,  and  marked  '"Exhibit  A.,"  and  is  made  a  part  of  this 
petition. 

Your  petitioner  further  represents,  that  in  said  bill  of  par- 
ticulars marked  "  Exhibit  A,"  each  and  every  item  of  materials 
furnished,  and  of  the  labor  performed  and  bestowed  in  the 
erection  of  said  building,  is  fairly  and  jiistly  set  down,  with 
the  date  of  each  respectively,  and  the  price  of  each  item  of 
labor  and  material  is  set  down  opposite  the  same ;  that  each 
and  every  item,  and  all  the  material  and  labor  mentioned  in 
said  bill,  were  actually  furnished  under  said  contract  and  used 
in  said  building  of  the  defendant,  and  the  same  were  necessary 
to  complete  the  said  dwelling-house ;  and  the  price  charged 
for  each  article  or  item  is  a  fair  and  reasonable  one ;  that  all 
of  the  said  materials  so  furnished  by  your  petitioners  and  put 
into  said  building  were  of  excellent  quality ;  and  all  the  work 
done  by  your  petitioners  in  putting  up  said  house  was  done  in 
a  good  and  workmanlike  manner. 

Your  petitioners  further  represent,  that  the  said  building 
was  actually  erected  on  said  lot,  under  said  contract,  and  the 
same  constitutes  a  valual)le  and  permanent  improvement  on 
the  said  premises;  and  that  the  said  building  was  fully  com- 
pleted and  accepted  by  the  defendant  on  or  before  the,  etc., 
the  time  stipulated  in  said  contract,  as  a  complete  performance 
by  your  petitioners  of  all  the  said  contract,  on  their  part  to  be 
performed. 

Your  petitioners  further  represent,  that  there  now  remains 
due  and  unpaid  to  your  petitioners  from  the  defendant  on  said 

contract  the  sum  of dollars  ;  which  said  sum  the  defendant 

wholly  neglects  and  refuses  to  pay,  although  often  requested 
so  to  do ;  by  reason  whereof  your  petitioners  are  entitled  to  a 
lien  on  said  premises  to  secure  the  payment  of  the  amount  so 
due  your  petitioners  aforesaid. 

Forasmuch,  therefore,  as  your  petitioners  are  without  remedy 
in  the  premises,  except  in  a  court  of  equity,  and  to  the  t^nd  that 
the  said  E.  F.,  who  is  made  party  defendant  to  this  petition,  may 
be  required  to  make  full  and  direct  answer  to  the  same,  hut 
not  under  oath,  the  answer  under  oath  being  hereby  waived  / 
that  the  defendant  may  be  decreed  to  pay  your  petitioners  the 
amount  so  due  them,  as  aforesaid,  within  a  short  day  to  be 
fixed  by  the  court ;  and  that  in  default  thereof,  then  the  said 
premises  may  be  decreed  to  be  subject  to  your  petitioners' 


596  MECHANIC'S   LIEN. 

Petition  for  Lien,  on  Implied  Contract. 

lien  on  the  same,  and  may  be  bold  as  the  court  shall  direct  to 
satisfy  the  amount  so  due  the  petitioners  as  aforesaid,  together 
with  the  costs  of  this  proceeding,  in  pursuance  to  the  statute  in 
such  case  provided ;  tliat  in  case  of  such  sale,  and  a  failure  to 
redeem  therefrom,  pursiuiut  to  law,  that  the  defendant  and  all 
persons  claiming  through  or  under  him,  after  the  commence- 
ment of  this  suit,  may  be  forever  barred  and  foreclosed  of  all 
right  or  equity  of  redemption  of  the  said  premises ;  and  that 
your  petitioners  may  have  such  other  and  further  relief  in  the 
premises  as  equity  may  require  and  to  your  honor  shall  seem 
meet. 

May  it  please  your  honor,  etc.  [Pray  ^ocess  as  in  number 
212,  kntQ,  page  592.) 

No.  21Jf,.     Petition  for  a  mechanic's  lien  on  an  implied 

contract. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois. 

Your  petitioner,  A.  B.,  of,  etc.,  respectfully  represents  unto 
your  honor  that  he  is,  and  has  been  for  a  number  of  months 
last  past,  engaged  in  dealing  in  lumber  and  other  building  mate- 
rials in  ,  in  said  county ;  that  on,  etc.,  one  C.  D.,  of,  etc., 

who  is  made  a  party  defendant  to  this  petition,  who  was  then 
erecting,  or  about  to  commence  tlie  erection  and  construction 
of  a  flouring  mill,  contracted  with  your  petitioner  for  the  sale 
and  delivery  to  him  of  lumber  of  various  sorts,  dressed  and 
undressed,  shingles,  lime,  cement  and  other  building  materials, 
to  be  used  in  and  about  the  construction  of  said  mill,  the  same 
to  be,  and  then  being  erected  on  the  following  described  prem- 
ises, to  wit :  [Here  describe  the  premises  on  wliich  viill  icas 
built,)  of  which  the  said  C.  D.  was  then  and  still  is  the  owner. 

Your  petitioner  further  repi'esents,  that  no  particular  amount 
of  lumber  and  other  materials  was  specifically  .contracted  for, 
nor  was  the  kind  or  quality  specifically  named,  nor  was  the 
time  or  times  of  the  delivery  thereof  definitely  fixed,  but  it 
was  understood  and  agreed  between  your  petitioner  and  the 
said  C.  D.  that  your  petitioner  should  furnish  and  deliver  to 
the  said  C.  T>.  such  quantities  of  lumber  and  other  materials, 
and  of  the  kind  and  quality,  as  your  petitioner  might  have  for 
sale,  and  the  said  C.  D.  might  need  in  and  about  the  construc- 
tion of  the  said  mill,  and  as  he  might  call  for  or  order  from 
time  to  time,  during  the  process  of  the  erection  of  the  said  mill, 
which  was  to  be  completed  on,  or  before,  etc. ;  and  that  the 
whole  amount  of  lumber  and  materials  contracted  for  as  afore- 


MECHANIC'S   LIEN.  597 

Petition  for  Mechanic's  Lien,  on  Implied  Contract. 

eaid,  -were  to  be  furnished  within  that  time ;  that  your  peti- 
tioner was  to  furnish  the  said  himber  and  other  materials  to  the 
said  C.  D.  at  tlie  usual  and  market  price,  and  that  the  same 
were  to  be  paid  for  on  delivery. 

Your  petitioner  further  represents,  that  in  pursuance  of  said 
contract,  and  upon  the  request  of  the  said  C  D.,  your  peti- 
tioner, on,  etc.,  commenced  furnishing  and  delivering  to  the 
said  C  D.  lime,  lumber  and  other  materials  for  his  said  build- 
ing, and  continued  thereafter  and  until,  etc.,  to  furnish  and 
deliver  to  him  such  materials  of  the  kinds,  qualities,  amounts 
and  dates  respectively  as  is  shown  by  the  bills  thereof,  hereto 
attached,  marked  exhibits  1,  2,  3  and  4,  and  made  a  part  of  this 
petition. 

Your  petitioner  further  represents,  that  the  whole  of  said 
lumber  and  other  materials  shown  by  said  bills,  were  actually 
used  in  and  about  the  erection  and  construction  of  said  mill, 
situate  and  built  upon  the  premises  aforesaid. 

Your  petitioner  further  represents,  that  the  prices  annexed 
respectively  to  the  several  items  for  materials  in  said  bills  con- 
tained are  the  usual  and  market  price  for  such  materials,  at 
the  times  respectively  when  the  same  were  furnished ;  that 
your  petitioner  has  been  paid  in  cash  to  apply  upon  said  mate- 
rials so  furnished,  the  amounts  as  shoM'n  in  and  by  the  credits 
upon  said  bills,  and  no  more,  and  that  there  still  remains  due 

your  petitioner  thereon  the  sum  of dollars,  together  with 

interest  thereon  from  the  time  said  materials  were  furnished, 
which  the  said  0.  D.  agreed  to  pay,  and  which  your  petitioner 
claims. 

Your  petitioner  further  represents,  that  he  has  frequently 
applied  to  the  said  C.  D.  for  the  payment  of  the  amount  so 
remaining  due,  but  the  said  C.  D.  has  hitherto  failed  and  neg- 
lected to  pay  the  same  or  any  part  thereof. 

Your  petitioner  further  represents,  upon  information  and  be- 
lief, that  E.  F.  and  Gr.  H.,  of,  etc.,  have  or  claim,  some  interests, 
(the  precise  nature  of  which  is  unknown  to  your  petitioner,) 
in  the  said  premises,  as  purchasers,  mortgagees,  judgment  cred- 
itors, or  otherwise;  but  such  interests,  if  any  there  be,  have 
accrued  since,  and  are  subject  to  the  lien  of  your  petitioner,  by 
virtue  of  the  statutes  of  this  state  in  relation  to  liens. 

Forasmuch,  therefore,  as  your  petitioner  is  without  remedy 
in  the  premises,  except  in  a  court  of  equity ;  and  to  the  end  that 
the  said  C.  D.,  E.  F.  and  G.  H.,  who  are  made  parties  defendants 
to  this  petition,  may  be  required  to  make  full  and  direct  answer 
to  the  same,  but  not  under  oath,  the  answer  unde?'  oath  being 
hereby  waived  /  that  your  petitioner  be  allowed  to  have  and 


698  MECHANIC'S   LIEN. 

Proceedings  upon  —  Process  —  Docketing,  etc. 

maintain  a  lien  upon  said  premises,  in  accordance  with  tlie 
statute  in  such  case  made  and  provided ;  and  that  an  account 
may  be  taken,  under  tlie  direction  of  the  court,  of  the  amount 
due  your  petitioner,  from  the  said  C.  D.,  as  aforesaid,  and  that 
a  decree  may  be  rendered  in  favor  of  your  petitioner  for  the 
amount  so  found  due ;  an(|  that  the  said  C.  D.  may  be  decreed 
to  pay  the  same,  tof^etlier  with  the  costs  of  this  proceeding,  by 
a  short  day  to  be  tixed  by  the  court ;  and  that  in  default  of 
such  payment  the  said  premises  may  be  sold,  as  the  court  shall 
direct,  to  satisfy  such  debt  and  costs ;  that  in  case  of  such  sale 
and  a  failure  to  redeem  therefrom  pursuant  to  law,  the  de- 
fendants, and  all  persons  claiming  through  or  under  them,  or 
either  of  them,  after  the  commencement  of  this  proceeding, 
may  be  forever  barred  and  foreclosed  of  all  right  or  equity  of 
redemption  of  the  said  premises ;  and  that  your  petitioner  may 
have  such  other  and  further  relief  in  the  premises  as  equity  may 
require,  and  to  your  honor  shall  seem  meet. 

May  it  please  your  honor,  etc.     {Pray  process  as  in  No. 
^m,  ante,  page  692.) 


SECTION  IX. 
PROCEEDINGS    UPON. 

Summons. —  The  statute  provides  that, 
(§  6.)  "Upon  the  filing  of  such  bill  or  petition,  summons 
shall  issue,  and  service  thereof  be  had,  as  in  suits  in  chancery,"  {x) 

Notice  hy  puhli cation. —  (§  7.)  "  "When  any  defendant  resides 
or  has  gone  out  of  the  state,  or  on  due  inquiry  cannot  be  found, 
or  is  concealed  within  this  state,  so  that  process  cannot  be 
served  upon  him,  the  complainant  or  petitioner  may  cause 
notice  to  be  given  to  him  in  like  manner  and  upon  the  same 
conditions  as  provided  in  suits  in  chancery."  (_y) 

Cases  to  he  placed  nn  c^xincery  doclxet. —  The  statute  re- 
quires that, 

(§  8.)  "  Suits  instituted  under  the  provisions  of  this  act  shall 
be  placed  upon  the  chancer^  docket,  and  stand  for  trial  as  other 
suits  in  chancery." 

(x)    Ante,  pp.  74-77, 
(?/)    Ante,  pp.  77-79. 


MECHANIC'S  LIEN.  599* 


Amendments  —  Answer. 


SECTION  X. 
AMENDMENTS. 

The  statute  provides  that, 

(§9.)  "  For  the  purpose  of  bringing  all  parties  in  interest 
before  the  court,  the  court  shall  permit  amendments  to  any  part 
of  the  pleadings,  and  may  issue  process,  make  all  orders  requir- 
ing parties  to  appear,  and  requiring  notice  to  be  given,  that  are 
or  may  be  authorized  in  proceedings  in  chancery,  and  shall 
have  the  same  power  and  jurisdiction  over  the  parties  and 
subject ;  and  the  rules  of  practice  and  proceedings  in  such  cases 
shall  be  the  same  as  in  other  cases  in  chancery,  except  as  is 
otherwise  provided  in  this  act."  (s) 

SECTION  XI. 

ANSWER. 

The  statute  requires  that, 

(§  10.)  "  Defendants  shall  answer  the  bill  or  petition  under 
oath,  unless  the  oath  is  waived  by  the  complainant  or  peti- 
tioner, and  the  plaintiff  shall  except  or  reply  to  the  answer  as 
though  the  proceeding  was  in  chancery.  The  answer  shall 
be  regarded  as  the  plea  of  the  defendant,  and  by  replication 
thereto  an  issue  or  issues  shall  be  formed,  which  shall  be 
tried  by  the  court,  or  by  a  jury  under  the  direction  of  the  court, 
as  the  court  may  direct  or  the  parties  agree." 

Where  the  bill  or  petition  waives  the  sworn  answer,  although 
the  answer  be  sworn  to,  it  cannot  be  received  in  evidence,  and 
has  no  other  or  greater  weight  than  an  answer  not  sworn  to.  {a)' 

[z)    Ante,  pp.  164-170. 

(o)  Clarke  vs.  Boi/le,  51  111.  104;  see  L.  S.  d-  M.  S.  R.  R.  Co.  vs.  McMillan, 
84  111.  208. 


600  MECHANIC'S   LIEN. 

Form  of  Answer  by  Owner,  Defendant. 

No.  215.     Answer  of  owner  defendant  to  a  hill  or  petition  for 

a  'mechanic's  lien. 

In  the Court. 

C.  D.  et  at.  )  Term,  18—. 

vs.  >  In  Chancery. 

A.  B.      ) 

The  separate  answer  of  C.  D.,  one  the  defendants  to 
the  bill  of  complaint  {or  petition)  of  A,  B.,  com- 
plainant, {or  petitiojier.) 

This  defendant  reserving  to  himself  all  right  of  exceptions 
to  the  said  bill  of  complaint  {or petition),  for  answer  thereto 
eajs,  (*) 

He  admits  that  he  did,  about  the  time  mentioned  in  said  bill 
{or  petition)^  make  a  verbal  contract  with  the  complainant  {or 
petitioner)  to  bnild  for  him  a  house,  and  to  furnish  all  the  ma- 
terials and  labor  necessary  to  erect  the  same ;  and  admits  that 
a  part  of  the  terms  of  said  contract  are  substantially  mentioned 
in  said  bill  {or  petition) ;  but  this  defendant  denies  that  said 
contract  is  correctl}^  set  forth  in  said  bill  {or  petition),  but,  on 
the  contrary,  avers  that  in  said  contract  it  was  expressly  agreed 
and  contracted  that  the  complainant  {or  petitioner)  should  fur- 
nish only  the  best  quality  of  lumber  and  materials  for  said 
building,  and  that  all  the  flooring  should  be  well  seasoned, 
clear,  and  free  from  knots  and  other  imperfections,  and  should 
be  well  laid  and  blind  nailed,  and  planed  oif  smooth,  after 
being  laid,  so  as  to  make  the  same  level  and  smooth. 

And  this  defendant  avers,  that  the  complainant  {or  peti- 
tioner) did  not  use  the  best  quality  of  lumber  in  constructing 
said  house,  but  did  use  a  very  inferior  kind  of  lumber ;  and 
this  defendant  especiallj:  states  that  the  flooring  used  in  said 
house  were  not  well  seasoned,  and  not  clear  and  free  from 
knots  and  other  imperfections,  iDut,  on  the  contrary  thereof,  was 
wholly  unseasoned,  and  was  green,  and  full  of  knots  and  other 
imperfections ;  and  that,  by  reason  thereof,  the  said  floor  has 
shrunk  and  warped,  and  become  loose  and  unfit  for  use ;  that 
the  large  number  of  knots  in  said  flooring  have  become  loose 
and  have  fallen  out,  and  left  holes,  and  so  this  defendant  says 
that  the  complainant  has  not  and  did  not  comply  with  his  said 
contract,  in  that  respect. 

This  defendant  further  answering  admits,  that  soon  after  the 
said  house  appeared  to  be  finished  and  completed,  the  com- 
plainant {or petitio7ier)  came  to  this  defendant  and  stated  that 
he  had  completed  and  finished  the  said  house,  and  desired  this 


MECHANIC'S   LIEN.  601 

Form  of  Answer  by  Owner. 

defendant  to  examine  and  accept  the  same  as  fully  completed 
and  finished  according  to  the  terms  of  the  contract,  and  this 
defendant  did  look  at  said  house,  and  the  same  appeared  to  be 
built  and  completed  in  a  substantial  and  workmanlike  manner, 
as,  so  far  as  this  defendant  could  then  see,  the  same  appeared  to 
be  constructed  of  good  material;  but  this  defendant  says  he 
could  not  see,  and  could  not  by  any  means  then  determine  or 
know  whether  said  flooring  was  of  seasoned  or  unseasoned 
lumber. 

And  this  defendant  avers,  that  the  complainant  {or petitioner) 
then  assured  this  defendant  that  all  the  materials  in  said  house 
were  of  the  best  quality,  and  that  all  the  lumber  put  in  said 
house  was  well  seasoned  and  dry ;  and  this  defendant,  believ- 
ing the  said  representations  of  the  complainant  {or  2)etitioner), 
and  acting  on  the  same,  did  accept  the  said  house  from  the 
complainant  {or  2)Gtitione7^),  and  did  shortly  thereafter  move 
into  and  occupy  the  same  with  his  family. 

And  this  defendant  further  answering  avers,  that  within  a  few 
days  after  he  commenced  living  in  said  house,  and  had  begun 
to  have  fires  in  the  difierent  rooms,  so  as  to  dry  out  and  season 
the  said  lumber,  in  said  floors,  the  same  began  to  warp  and 
shrink,  and  did  continue  to  season  and  warp  and  shrink,  until 
many  of  the  boards  became  loose,  and  tlie  said  floors  in  the  said 
house,  and  in  all  of  the  same,  became  shrunk,  and  warped  and 
loose ;  and  this  defendant  has  been  compelled  to  expend  a  lai-ge 

sum  of  money,  to  wit,  the  sum  of dollars,  in  laying  down 

new  floors  in  the  rooms  of  said  house  ;  and  this  defendant  avers, 
that  tbe  damage  which  he  has  sustained  by  reason  of  the  said 
failure  of  the  complainant  {or ])etitioner)  to  use  good  seasoned 
lumber  in  said  floors,  and  by  reason  of  the  putting  in  of  said 
green  and  unseasoned  lumber  in  said  floors  in  said  house,  greatly 
exceeds  the  whole  amount  which  the  complainant  {or  petitioner) 
claims  in  his  said  bill  {or  petition)  to  be  due  to  him.  {Here  set 
forth  any  other  matter  hy  roay  of  defense^ 

And  this  defendant  further  answering,  denies  that  the  com- 
plainant {or  petitioner)  is  entitled  to  the  relief  or  any  part 
thereof,  in  the  said  bill  {or petition)  demanded;  and  prays  the 
same  advantage  of  this  answer  as  if  he  had  pleaded  or  demurred 
to  the  said  bill  of  complaint  {or  petition  y)  and  prays  to  be 
dismissed  M^th  his  reasonable  costs  and  charges  in  this  behalf 
most  wrongfully  sustained,  etc. 

Sol.  for  Defendant.  C.  D. 

{If  oath  is  not  loaived,  add  affidavit,  N'o.  58,  ante,  2)cigc  11^0.) 


602  MECHAXIC'S   LIEK 

Forms  of  Answers,  etc. 

No.  216.     Answer  to  a  jpetitiori  for  a  mechanic's  lien,  setting 
uj)  a  discha/rge  of  lien. 

{Proceed  as  in  No.  215,  ante,  page  600,  to  tice  asterisk,  (*) 
and'  then  proceed ;) 

Tills  defendant  admits  that  lie  did  make  a  contract  with  the 
petitioner  as  set  forth  in  his  said  petition,  and  that  the  peti- 
tioner did  constrnct  a  house  substantially  as  required  in  said 
contract;  but  this  defendant  avers  that  the  petitioner  is  not 
entitled  to  a  lien  on  the  said  premises  in  any  sum  whatever; 
because  he  says,  that  after  the  completion  of  the  said  building 
by  the  petitioner,  and  before  the  commencement  of  this  suit, 
and  on,  etc.,  the  petitioner  applied  to  this  defendant  for  a  settle- 
ment of  the  matters  relating  to  said  contract,  and  upon  such 
settlement  and  adjustment  of  accounts,  there  was  found  to  be 

due  to  the  petitioner  on  said  contract  a  balance  of dollars ; 

and  the  petitioner  then  required  of  this  petitioner  security  for 
the  amount  so  remaining  due  ;  and  this  defendant  did  then  and 
there  execute  and  deliver  to  the  petitioner  a  promissory  note 

of  that  date,  for  the  said  sum  of dollars,  payable  in 

after  date ;  and  then  and  there,  at  the  request  of  the  peti- 
tioner, procured  one  E.  F.  to  sign  said  note  with  this  defendant 
as  security  for  said  amount,  and  the  said  E.  F.  did  sign  the 
same  accordingly ;  and  this  defendant  avers  that  the  petitioner 
did  then  and  there  accept  the  said  note  from  this  defendant  in 
full  payment  and  discharge  of  the  said  balance  so  being  and 
remaining  due  on  said  contract  as  aforesaid  ;  and  so  this  defend- 
ant says,  that  the  lien  of  the  petitioner,  if  any  he  ever  had, 
has  been  canceled,  waived  and  fully  discharged. 

And  now  having  fully  answered  the  said  petition,  this  de- 
fendant prays  to  be  dismissed  with  his  costs  and  charges  in  this 
behalf  most  wrongfully  sustained,  etc. 

Sol.  for  defendant.  C.  D. 

{If  oath  is  not  waived,  add  affidavit,  No.  58,  ante,  page  lJf9.) 

No.  217.     Answer  of  defendant  setting  up  a  lien  for 
materials,  etc. 

{Proceed  as  in  No.  215,  ante,  page  600,  to  the  asterisk,  (*) 
and  then  proceed :) 

This  defendant  answering  says,  it  may  be  true,  for  anything 
this  defendant  knows  to  the  contrary,  that,  etc.  {Here  substan- 
tially set  forth  the  statement  of  the  petitioner'' s  claim  ;)  but  this 
defendant  is  an  utter  stranger  to  all  and  every  such  matters, 


MECHANIC'S   LIEN.  603 

Form  of  Answer. 

and  can  neither  admit  nor  deny  the  same,  but-calls  for  strict 
proof  of  such  matters. 

This  defendant  further  answering  says,  that  on,  etc.,  tlie  said 
defendant  C  J),  was  engaged  in  building  a  mill  on,  etc.  {Here 
describe  the  preTnises  on  which  the  huilding  was  erected, )  as  in 
said  petition  is  alleged ;  and  at  the  same  time  this  defendant 
was  a  dealer  in  lumber,  at,  etc.,  and  on,  etc.,  the  said  defend- 
ant C.  D.  applied  to  this  defendant,  and  desired  this  defendant 
to  furnish  him  a  large  quantity  of  lumber  to  be  used  in  and 
about  the  construction  of  the  said  mill,  and  thereupon  this 
defendant  did  agree  with  said  defendant  C.  D.,  that  he  would 
furnish  him  such  lumber  as  he,  the  said  C.  D.  might,  from  time  to 
time  order,  or  desire  for  use  in  constructing  said  mill ;  and  this 
defendant  did  afterward,  on,  etc.,  and  at  different  times,  furnish 
to  the  defendant  C.  D.  divers  large  quantities  of  lumber,  to  be 
used  in  constructing  said  mill  on  said  premises ;  and  this  defend- 
ant attaches  to  this  answer,  and  as  a  part  thereof,  a  bill  of  said 
lumber,  so  furnished,  marked  "  Exhibit  A,"  which  contains  a  j^ar- 
ticular  description  of  said  lumber,  with  the  dates  when  the  same 
was  furnished,  and  with  the  price  and  vahie  of  each  item  or 
article  of  lumber  set  opposite  the  same;  and  this  defendant 
avers  that  all  the  items  or  articles  of  lumber  in  sai'd  bill  men- 
tioned, were  furnished  to  the  defendant  C.  D.  under  the  said 
agreement,  at  the  times  specified  in  said  bill,  to  be  used  in  the 
construction  of  said  mill ;  and  that  each  and  all  of  the  said  items 
of  lumber  were  actually  used  in  the  construction  of  said  mill. 

And  this  defendant,  further  answ^ering,  says,  that  at  the  time 
of  the  selling  said  lumber  to  the  defendant  C.  D.,  there  w^as  no 
agreement  as  to  the  price  or  value  of  the  same,  nor  was  any 
agreement  made  as  to  when  the  defendant  C.  D.  should  pay 
for  the  same;  and  this  defendant  avers  that  he  is  by  law 
entitled  to  ask  and  receive  for  said  lumber  as  much  as  the 
same  was  reasonably  worth,  and  was  entitled  to  receive  his  pay 
therefor  as  soon  as  said  articles  were  delivered ;  and  that  the 
last  of  said  articles  was  delivered  on,  etc. ;  and  that  tlie  whole 

amount  of  said  bill,  to  wit,  the  sum  of dollars,  was  justly 

due  and  payable  to  this  defendant  from  the  defendant  C.  D. 
on  the  day  last  named ;  and  that  the  same  is  still  due  and 
remains  wholly  unpaid.  Wherefore,  this  defendant  claims  and 
insists  that  he  is  entitled  to  have  a  lien  on  the  said  premises, 
equal  to  that  of  the  petitioner  or  any  other  person  having  a 
lien  thereon  for  work  done  or  materials  furnished.* 

This  defendant,  therefore,  prays  that  on  the  hearing  of  this 
cause,  a  decree  may  be  made  by  the  court,  giving  to  this  de- 
fendant a  lien  upon  said  premises  for  the  said  sum  of 


604  MECHANIC'S   LIEN. 

Form  of  a  Cross-Bill  in. 

dollars ;  and  that  the  said  sum  may  be  decreed  to  be  paid  to 
this  defendant  within  a  short  day  to  be  named  in  the  said 
decree,  and  that  in  default  of  such  payment  the  said  premises 
may  be  decreed  to  be  sold,  and  the  proceeds  applied  accord- 
ing to  the  statute  in  such  case  made  and  provided. 

SECTION  XII. 

CEOSS-BILL. 

Mo.  218.     Cross-hill  hy  a  defendant  to  a  hill  or  petition  for  a 
mechanic's  lien  to  enforce  lien  of  defendant. 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of  Illinois, 

In  Chancery  sitting : 

Tour  orator,  A.  B.,  of,  etc.,  respectfully  represents  unto  your 
honor,  that  on,  etc,  C.  D.,  of,  etc.,  one  of  the  defendants  here- 
inafter named,  exhibited  in  this  honorable  court  his  bill  of 
complaint  {or  jpetition)  against  one  E.  F.  and  G.  H.,  of,  etc., 
defendants  hereinafter  named,  and  your  orator,  to  enforce  a 
mechanic's  lien  therein  described,  and  thereby  praying  that, 
etc.  {Here  set  forth  the  suhstance  of  the ])rayer  •)  and  your 
orator  being  duly  served  with  process,  appeared  and  put  in  his 
answer  thereto,  as  by  the  said  bill  {or  petition)  and  other  pro- 
ceedings in  the  said  cause,  now  remaining  on  tile  and  of  record 
in  this  honorable  court,  reference  thereto  being  had,  will  more 
fully  appear. 

Your  orator  further  represents,  that  it  is  true  as  stated  in 
eaid  original  bill,  that  the  said  E.  F.  named  in  said  bill  was, 
on,  etc.,  engaged  in  building  a  house  on  the  premises  described 
in  said  original  bill,  to  wit :  {Ilere  describe  the  p>remises^  of 
which  said  lot  the  said  E.  F.  was  then,  and  still  is,  the  owner. 

And  your  orator  further  represents,  that  on,  etc.,  tlie  defend- 
ant E.  F.  applied  to  your  orator,  who  is  a  brick  and  stone 
mason  by  occupation,  and  desired  him  to  do  certain  work,  that 
is  to  say,  to  build  the  foundation,  basement  and  cellar  walls, 
and  chimneys  of  said  house;  and,  thereupon,  your  orator  and 
the  said  E.  F.  contracted  that  your  orator  M^as  to  build  the 

foundation,  basement  and  cellar  walls,  and  chimneys  to 

said  house,  ali  of , said  work  to  be  done  under  the  direction  of 
the  defendant  E.  F.  or  his  agent ;  and  the  said  E.  F.  then  and 
there  agreed' to  and  with  your  orator  to  pay  him  for  such  work 
the  sum  of dollars  per  thousand,  according  to  the  custom- 
ary manner  of  measuring  such  work. 


MECHANIC'S   LIEN.  606 

Form  of  Cross-Bill. 

And  your  orator  further  represents,  tliat,  in  pursuance  of 
said  contract,  lie  did,  on,  etc.,  the  time  indicated  by  tlie  said 
E.  F.,  commence  work  for  the  said  E.  F.  under  said  contract, 
and  did  so  continue  to  work  until  all  of  said  work,  and  all  the 
work  that  the  said  E.  Fw  desired  your  orator  to  do  was  fully 
completed. 

Your  orator  further  represents,  that  all  said  work  was  done 
under  the  direction  of  the  said  E.  F.,  and  in  the  manner  indi- 
cated by  him  ;  and  that  under  said  contract  your  orator  laid  up 

in  said  walls thousand  brick,  as  shown  by  the  bill  of  items 

hereto  attached,  marked  "  Exhibit  A.,"  and  made  a  part  hereof; 

that  the  whole  amount  due  your  orator  for  said  work  is 

dollars. 

Your  orator  further  represents,  that  no  time  was  agreed  upon 
when  said  work  was  to  be  paid  for,  but  your  orator  avers,  that 
by  the  understanding  of  the  parties,  the  said  sum  became  due 
to  your  orator  as  soon  as  said  work  w^as  finished ;  and  your 
orator  represents  that  the  said  work  was  all  finished  and  com- 
pleted on,  etc. ;  and  that  the  said  sum  of dollars  became 

due  on  the  said  'day  last  aforesaid,  and  still  remains  wholly 
unpaid. 

Your  orator  further  represents,  that  all  of  said  work  was 
done  and  finished  within  one  year  from  the  time  of  commencing 
to  do  said  work,  as  fully  appears  by  the  dates  heretofore  given ; 
and  by  reason  of  the  premises,  and  of  the  failure  of  the  said 
E.  F.  to  pay  him  the  said  sum  of  money  so  due  as  aforesaid, 
your  orator  is  entitled  to  a  lien  on  the  said  premises  to  secure 
your  orator  the  sura  so  due  liim  as  aforesaid. 

Forasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  by  filing  this  his  cross-bill  in  the  said 
proceedings  commenced  by  the  said  C.  D.  against  your  orator 
and  the  said  E.  F.  and  G.  H.,  and  to  the  end  that  the  said 
C.  D.,  E.  F.  and  G.  H.,  who  are  hereby  made  parties  defend- 
ants to  this  cross-bill,  may  be  requii'ed  to  make  full  and  direct 
answer  to  the  same,  hut  not  under  oath,  the  answer  under  oath 
heing  herehy  waived ;  that  an  account  may  be  taken  of  the 
amount  due  your  orator;  and  that  tlie  defendant  E.  F.  be  de- 
creed to  pay  your  orator  the  amount  which  shall  be  found  to 
be  due,  by  a  short  day  to  be  fixed  by  the  court ;  that  the  rights 
and  interests  of  each  and  all  of  said  parties  may  be  ascertained 
and  adjusted  ;  and  that  your  orator  may  have  a  lien  on  said 
premises  for  the  amount  of  his  said  claim ;  and  in  case  default 
shall  be  made  by  the  defendant  E.  F.  in  making  said  payment 
within  the  time  limited  as  aforesaid,  that  the  said  premises  be 
sold  under  the  direction  of  this  court,  and  the  proceeds  of  said 


606  MECHANIC'S   LIEN. 

Decrees,  et6. 

sale  be  applied  to  the  payment  of  such  claims,  including  your 
orator's,  as  may  appear  to  be  liens  upon  such  premises;  and 
that  your  orator  may  have  such  further  and  otlier  relief  in  the 

Premises  as  the  nature  of  his  case  shall  require  and  to  your 
on  or  may  seem  meet.  t 

{Attach  exhibits,  and  if  any  new  parties  are  to  he  made^  add 
prayer  for  process  as  in  No.  ^12,  ante,  page  592.) 

SECTION  XIII. 
DECREES,    ETC. 

The  court  generally  may,  if  it  sees  proper,  direct  the  sale  of 
the  estate  of  all  the  parties  having  an  interest  in  the  premises. 
But  the  better  practice  is  not  to  do  so  if  the  objects  of  the 
statute  can  be  attained  by  decreeing  a  sale  of  the  interest  of 
those  parties  only  against  whose  interests  the  lien  equitably 
attaches,  (h) 

Where  a  part  can  he  sold,  etc. — The  statute  provides  that, 
(§  22.)  "  If  any  part  of  the  premises  can  be  separated  frou: 
the  i-esidue,  and  sold  without  damage  to  the  whole,  and  if  the 
value  thereof  is  sufficient  to  satisfy  all  the  claims  proved  in  the 
cause,  tlie  court  may  order  a  sale  of  that  part." 

Sales,  how  7nade. —  f§  23.)  "The  sale  shall  be  made  in  the 
same  manner  as  other  sales  of  real  estate  under  decrees  in 
chancery." 

Redemption  allowed. —  (§  24.)  "  Upon  all  sales  under  tliis 
act,  the  right  of  redemption  shall  exist  in  favor  of  the  same 
persons,  and  may  be  made  in  the  same  manner  as  is  or  may  be 
provided  for  redemption  of  real  estate  from  sales  under  judg- 
ments and  executions  at  common  law." 

Execution  allowed  for  balance  due. — The  statute  further  pro- 
vides that, 

(§  25.)  "  If,  upon  making  sale  of  any  premises  under  this  act, 
the  proceeds  of  such  sale  shall  not  be  sufficient  to  pay  the 

(6)    Kidder  vs.  AhoUz,  36  111.  478. 


MECHANIC'S   LIEN.  607 

Form  of  Decree,  etc. 

claims  of  all  parties,  according-  to  their  rights,  the  judgment 
shall  be  credited  by  the  amount  of  such  sale,  and  execution  may 
issue  in  favor  of  any  creditor  whose  claim  is  not  satisfied,  for 
the  balance  due,  as  upon  a  judgment  in  actions  of  debt  or 
assumpsit,  and  in  case  of  excess  of  sales  over  the  amount  of 
judgment,  such  excess  shall  be  paid  to  the  owner  of  the  land, 
or  to  the  person  who  may  be  entitled  to  the  same,  under  the 
direction  of  the  court." 

No.  ^19.     Decree  allowing  lien  and  for  a  sale  of  the  jpremises. 

{Caption.,  and  title  of  cause  as  in  No.  79,  a.nte,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  bill  [or  peti- 
tion) of  complaint  herein,  the  answer  thereto,  the  replication 
of  the  complainant  [or petitioner)  to  such  answer,  and  the  court 
having  heard  the  evidence  both  oral  and  documentary,  and  the 
same  having  been  argued  l)y  the  counsel  for  the  respective 
parties;  and  being  fully  advised  in  the  premises,  doth  find  that 
the  matters  in  the  said  bill  {or petition)  are  true;  and  that, 
etc.,  {Here  set  forth  the  suhstance  of  the  facts  as  found.,  or 
stated  ill  the  hill  or  petition  f)  and  that  there  is  now  due  the 

complainant  {or  petitioner)  the  sum  of dollars,  for  which 

sum  he  is  entitled  to  a  lien  on  the  said  premises,  to  wit :  {Here 
descrihe  the  lot  on  xohicli  huilding  was  erected^)  in  accordance 
with  the  statute  in  such  case  provided. 

It  is  therefore  ordered.^  adjudged  and  decreed.,  that  the  com- 
plainant {or  petitioner)  have  a  lien  on  the  said  described  prem- 
ises for  the  amount  so  found  to  be  due  from  the  defendant  C.  D. ; 
that  the  defendant  CD.  pay  to  the  complainant  {or petitioner) 
the  said  sum  of dollars,  with  interest  from  the  date  of  this  de- 
cree, within days  from  this  date ;  and  in  case  the  said  defend- 
ant C.  D.  shall  make  default  in  the  payment  of  the  said  sum  of 
money  within  the  time  herein  limited,  that  the  master  in  chan- 
cery of  this  court  shall  make  sale  of  the  said  premises,  or  such 
part  or  parts  thereof  as  may  become  necessary  to  pay  the  amount 
aforesaid,  at  public  vendue,  to  the  highest  and  best  bidder  for 
cash,  after  having  first  given  public  notice,  by  publication  in 
some  newspaper  published  in  said  county,  of  the  time  and 
place  of  said  sale,  and  the  terms  thereof;  and  upon  the  making 
of  such  sale  the  said  master  will  issue  a  certificate  of  purchase 
to  the  purchaser,  as  provided  by  law  ;  and  out  of  the  proceeds 
of  such  sale  the  said  master  will  pay  first,  the  costs  of  these 
proceedings,  including  his  commissions  and  the  expenses  of  the 
sale,  and  second,  pay  to  the  complainant  {or petitioner)  the  said 


608  MECHANIC'S   LIEN. 

Forms  of  Decree,  etc. 

sum  of dollars,  and  the  interest  due  on  the  same  ;  and  the 

surplus,  if  any,  to  the  defendant  C.  D. ;  and  the  said  master 
will  report  his  doings  in  the  premises  to  the  court. 

iV'^(9.  220.     Decree  for  meclianic^ a  lien,  where  there  are  other 
proceedings  pending  unadjusted. 

{Caption.,  and  title  of  cause  as  in  Ko.  79,  a.nte,  page  198.) 

And  noAV  this  cause  coming  on  to  be  lieard  on  the  complain- 
ant's bill,  and  the  answer  of  C.  D.,  one  of  the  defendants,  and 
the  replication  of  the  complainant  thereto,  and  the  court  having 
heard  the  evidence  in  this  case,  and  being  fully  advised  in  the 
premises,  doth  find  that  the  allegations  of  the  complainant's 
bill  are  substantially  true;  and  that  the  said  defendant  C.  D.^ 
did  make  a  contract  with  the  complainant  for  the  purchase  of  a 
quantity  of  lumber,  to  be  used  in  the  erection  of  a  dwelling  on 
the  following  described  premises,  to-wit:  {Sere  describe  the 
premises  on  which  the  I/uildi?ig  was  erected  i)  and  that  the  com- 
plainant did,  under  said  contract,  furnish  to  the  defendant 
C.  D.  a  large  quantity  of  lumber  to  be  used  in  erecting  said 
house,  and  that  the  said  lumber  was  actually  delivered  on  said 
lot  on,  etc. 

And  it  appearing  to  the  court  that  there  is  now  due  to  the 
complainant  from  the  said  defendant  C.  D.,  for  said  lumber, 

the  sum  of dollars  ;  and  the  court  being  fully  advised  in 

the  premises,  doth  find  that  the  complainant  is  by  law  entitled 
to  a  lien  on  said  premises  for  said  amount ;  the  court  doth 
therefore  order,  adjudge  and  decree,  that  the  said  defendant 

C.  D.  pay  to  the  complainant  A.  B.  the  said  sum  of  

dollars  within days  from  filing  of  this  decree,  with  inter- 
est on  the  same  from  the  date  of  the  filing  hereof  until  the 
same  is  paid ;  and  doth  further  order  that  the  complainant 
have  a  mechanic's  lien  on  said  premises  with  the  appurtenances 

for  the  said  sum  of dollars,  and  that  said  lien  commence 

and  take  effect  from,  etc. ;  and  because  other  claims  for  me- 
chanic's lien  are  now  in  this  cause  pending  and  undetermined, 
the  court  will  hereafter  make  such  further  decree  as  to  equity 
shall  seem  fit. 

No.  221.     Decree  allowing  mechanic's  lien  where  there  are 
several  liens  and  a  inortgage  to  he  adjusted. 

{Caption,  and^  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  having  come  on  to  be  heard  upon  the  original 
bill  of  complaint,  the  answers  thereto,  and  the  replications  to 


MECHANIC'S   LIEN.  609 

Form  of  Decree. 

such  answers,  and  the  several  cross-bills,  answers  to  such  cross- 
bills and  replications,  and  the  other  pleadinijs,  and  proceedings 
heretofore  had  in  this  cause ;  and  the  court  having  heard  the 
evidence,  both  documentary  and  oral,  and  the  report  of  the 
master  in  chancery  to  whom  this  cause  was  heretofore  referred 
to  take  the  evidence  as  to  the  value  of  the  premises  mentioned 
in  the  several  pleadings  in  this  cause,  to  wit :  {Here  describe  the 
premises  on  which  the  huilding  mas  erected^  prior  to  the 
making  of  the  improvements  referred  to  in  the  pleadings,  and 
the  additional  value  which  said  improvements  have  given  to 
the  said  premises;  and  the  court  doth  find  that,  in  addition 
to  the  liens  heretofore  decreed  in  this  cause,  the  said  E.  F. 
did  furnish  to  C.  D.,  one  of  the  defendants,  a  large  quantity 
of  brick,  to  be  used  in  constructing  the  said  building  on  said 
premises,  and  that  the  same  were  furnished  under  a  contract 
for  that  purpose,  and  were  to  be  and  were  used  by  the  defend- 
ant C.  D.  in  constructing  said  house  on  said  premises,  and  that 
there  is  due  the  said  E.  F.  from  the  defendant  C.  D.  the  sum 

of dollars  for  the  materials  so  furnished  ;  and  the  court 

doth  therefore  order,  adjudge  and  decree  that  the  said  C.  D. 
do  pay  the  said  E.  F.  the  said  sum  of dollars  as  herein- 
after provided,  and  that  the  said  E.  F.  have  a  lien  on  said 
premises  to  secure  the  same,  as  the  law  provides. 

And  the  court  doth  further  find  that,  in  addition  to  the 
liens  heretofore  decreed  in  this  cause,  the  said  G.  H.  did  fur- 
nish to  the  defendant  C.  D.  a  large  quantity  of  lumber  to  be 
used  in  the  erection  of  said  house  on  the  said  premises,  and  that 
said  lumber  was  furnished  under  a  contract  for  that  purpose, 
and  were  to  be  and  were  used  by  the  defendant  C.  D.  in  con- 
structing the  said  house  on  said  premises,  and  that  there  is  due 

to  the  said  G.  H.  from  the  defendant  C.  D.  the  sum  of 

dollars,  for  the  lumber  so  furnished  ;  and  the  court  doth  there- 
fore order,  adjudge  and  decree,  that  the  defendant  C.  D.  do  pay 

to  the  said  G.  H.  the  said  sum  of ,  as  hereinafter  provided, 

and  that  the  said  G.  H.  have  a  lien  on  the  said  premises  to 
secure  the  same,  as  the  law  directs. 

And  the  court  having,  heretofore,  on,  etc.,  made  a  decree  in 
this  cause,  that  the  defendant  C.  D.  was  indebted  to  the  com- 
plainant A.  B.  in  the  sura  of dollars,  and  that  the  com- 
plainant have  a  lien  on  the  said  premises  to  secure  the  payment 
thereof;  and  the  court  having  also,  by  another  decree  hereto- 
fore, on,  etc.,  rendered  in  this  cause,  ascertained  and  decreed 
that  L.  M.,  one  of  the  parties  hereto,  was  the  holder  of  a  mort- 
gage on  the  said  premises,  which  was  a  lien  on,  etc.,  prior  to 
the  time  when  any  of  the  mechanic's  liens  mentioned  in  this 
89 


610  MECHANIC'S   LIEN. 

Form  of  Decree. 

cause  commenced  to  take  eft'ect ;  and  the  court  having  heard 
the  arguments  of  the  counsel  for  the  respective  parties,  and 
being  fully  advised  in  the  premises,  doth  find  that  the  said 
premises,  up  to  and  before  tlie  time  of  the  commencement 
of  the  making  of  the  said  improvements  thereon,  for  which 

liens  in  this  case  are  sought  to  be  enforced,  was  worth 

dollars ;  and  that  the  said  buildings  and  improvements  men- 
tioned in  said  pleadings,  and  for  the  construction  of  which  the 
several  claims  for  liens  in  this  cause  are  sought  to  be  enforced, 

have  increased  the  value  of  said  premises dollars,  so  that 

the  said  premises  are  now  worth dollars. 

The  court  doth  further  order,  adjudge  and  decree,  that  the 
defendant  C»  D.  do  pay  the  said  several  sums  in  this  decree, 

and  the  several  decrees  hereinbefore  inentioned,  within 

days  from  this  date ;  and  in  case  of  default  in  the  payment  of 
said  sums,  or  either  of  them,  that  then  and  in  that  case  the 
master  in  chancery  of  this  court  is  ordered  to  sell  said  premises 
at  public  auction  to  the  highest  bidder  for  cash ;  that  said  sale 

be  made  at  the  front  door  of  the  court  house  in ,  in  the 

county  of aforesaid ;  and  that  the  said  master  give  public 

notice  of  the  time  and  place  and  terms  of  said  sale,  such  as 
the  law  requires  in  case  of  sherili''s  sale  of  land  on  execution, 
and  that  tlie  said  master  execute  to  the  purchaser  or  purchaserp 
at  such  sale  a  certificate  of  purchase  for  the  premises  sold,  ac- 
cording to  law. 

It  is  further  ordered,  adjudged  and  decreed,  that  as  to 

part  of  the  proceeds  of  said  sale,  the  said  L.  M.,  the  holder  of 
the  said  mortgage,  shall  have  a  first  and  prior  lien,  and  that 

as  to  the  remaining  part  of  the  proceeds  aforesaid,  the 

said  complainant  A.  B.,  and  the  said  E.  F.  and  G.  H.,  shall 
share  j9W  rata  to  the  amount  of  their  several  claims,  and  as  to 

the part  of  the  said  proceeds  of  sale,  the  said  A.  B.,  E.  F. 

and  G.  H.  shall  have  a  ijro  rata  secondary  lien  of  the  said  L. 
M.,  the  holder  of  the  said  mortgage;  and  the  said  master  is 
ordered,  out  of  the  proceeds  of  said  sale,  to  pay,  first,  the  costs 
of  this  proceeding,  including  his  commissions  and  the  expenses 
of  sale,  which  are  adjudged  against  the  defendant  C.  D.,  and 
that  the  remainder  he  shall  distribute  between  the  said  parties 
as  hereinbefore  provided  ;  and  should  any  overplus  remain  after 
paying  all  claims  in  full,  then  the  said  master  will  pay  the  same 
to  tlie  defendant  C.  D.,  the  owner  of  said  lot.  The  said  master 
will  report  his  doings  herein  to  the  court  at  the  next  term 
thereof,  to  which  term  this  cause  is  now  continued. 


MECHANICS   LIEN.  611 


Costs. 


SECTION  XIV. 
COSTS. 

The  statute,  revised  in  1874,  provides  that, 

(§  27.)  "  The  cost  of  proceeding  as  between  creditors  claim- 
ing liens  and  the  person  against  whom  the  lien  is  intended  to 
be  enforced,  shall  abide  the  event  of  the  suit ;  and  the  costs,  as 
between  creditors  aforesaid,  in  contests  relative  to  each  other's 
claim,  shall  be  subject  to  the  order  of  the  court,  and  the  same 
rule  shall  prevail  in  respect  to  costs  growing  out  of  proceedings 
against  and  between  incumbrances." 

For  other  cases  under  Mechanic's  Lien  Law,  see  Cunning- 
ham vs.  Ferr^j,  74  111.  426;  Kelly  vs.  Kellogg,  79  111.  477; 
Taylor  vs.  Gilsdorff,  74  111.  354;  Schnell  vs.  Clements,  73  111. 
613;  Theilman  vs.  Carr,  75  111.  385;  Drew  vs.  Mason,  81 
111.  498  ;  Orr  vs.  JSf.  M.  L.  Ins.  Co.,  86  111.  260  ;  Wing  vs.  Carr, 
86  111.  347  ;  Dunphey  xs. Riddle,  86  111.  22 ;  Straton  v».0'Bara, 
86  111.  53  ;  Daois  vs.Con?i.  M.  Life  Ins.Co.,  84  111.  508 ;  Reed 
vs.  Boyd,  84  111.  Q*^  ;  Johnson  vs.  Estahrook,  84  111.  75  ;  Rogers 
vs.  Foioell,  1  Bradwell,  App.  Ct.  R.  631. 

As  TO  SuB-CoNTKACTORS,  sec  Morehouse  vs.  Moulding,  74 
111.  322;  Biggs  vs.  Chq?}),  74  111.  335;  Newhall  vs.  Kastens, 
70  111.  156  ;  Brown  vs.  Lowell,  79  111.  484  ;  Mehrle  vs.  Dunne, 
75  111.  239 ;  Bridge  Co.  vs.  Z.  N.  A.  c&  St.  L.  Ry.  Co.  72  111. 
506  ;  Metz  vs.  Lowell,  83  111.  565  ;  Work  vs.  Hall,  79  111.  196 ; 
Ctdver  vs.  Elwell,  73  111.  536 ;  First  Baptist  Church  vs.  An- 
drews, 87  111.  172  ;  Adams  vs.  Russell,  85  111.  284 ;  Quhm  vs. 
Allen,  85  111.  39 ;  Meeks  vs.  Sims,  84  111.  422. 


CHAPTER  XL. 


INJUNCTIONS, 


An  act  to  revise  the  law  in  relation  to  injunction.    Approved 
March  25,  1874.     In  force  July  1,  1874. 

Judges  authorized  to  grant. —  (§  1.)  "That  the  superior 
court  of  Cook  county,  and  the  circuit  courts  in  term  time,  and 
any  judge  thereof  in  vacation,  shall  have  power  to  grant  writs 
of  injunction,  {a) 

Master  rkay  grant^  when. —  (§  2.)  "  "When  no  judge  author- 
ized to  grant  writs  of  injunction  is  present  in  the  county,  or 
being  present,  is  unable  or  incapacitated  to  act,  a  master  in 
chancery  in  such  county  may  order  the  issuing  of  such  writ. 

Notice  of  application. —  (§  3.)  "ISTo  court,  judge  or  master 
shall  grant  an  injunction  without  previous  notice  of  the  time 
and  place  of  the  application  having  been  given  to  the  defendants 
to  be  affected  therein^,  or  such  of  them  as  can  conveniently 
be  served,  unless  it  shall  appear  from  the  bill  or  affidavit  ac- 
companying the  same,  that  tlie  rights  of  the  complainant  will 
be  unduly  prejudiced  if  the  injunction  is  not  issued  immediately 
or  without  such  notice. 

To  stay  judgments,  where  had. —  (§  4.)  "  When  an  injunction 
shall  be  granted  to  stay  a  suit  or  judgment  at  law,  the  pro- 
ceeding shall  be  had  in  the  county  where  the  judgment  was 
obtained,  or  the  suit  is  pending ;  but  the  writ  may  be  sent  in 
the  first  instance  into  any  county  in  this  state  where  the  de- 
fendant re.sides. 

Shall  operate  as  a  release  of  errors. —  (§  5.)  "Every  injunc- 
tion, when  granted,  shall  operate  as  a  release  of  all  errors  in 
the  proceedings  at  law  that  are  prayed  to  be  enjoined.  (J) 

(a)    See  Phelps  vs.  Foster,  18  111.  309  ;  Welch  vs.  Byrns,  38  111.  20. 
(&)    See  McConnell  vs.  Ayres,  3  Scam.  210. 


INJUNCTIONS.  613 


Judgments,  etc. — Bond. 


Judgments  before  justice  of  the  peace. —  (§  6.)  "No  writ 
of  injunction  shall  be  granted  to  stay  proceedings  under  a 
judgment  obtained  before  a  justice  of  the  peace  for  a  sum  not 
exceeding  twenty  dollars,  besides  the  costs,  (c) 

As  to  part  of  judgment. —  (§  7.)  "  Only  so  much  of  any 
judgment  at  law  shall  be  enjoined  as  the  complainant  shall 
show  himself  equitably  not  bound  to  pay,  and  so  much  as  shall 
be  sufficient  to  cover  costs,  {d) 

Comjylainant  to  give  hond. —  (§  8.)  "Before  an  injunction 
shall  issue  to  enjoin  a  judgment,  the  complainant  shall  give 
bond  to  the  plaintiff  therein,  in  double  the  amount  of  such 
judgment,  with  sufficient  surety  approved  by  the  court,  judge 
or  master,  conditioned  for  the  payment  of  all  moneys  and  costs 
due  to  the  plaintiff  in  the  judgment,  and  such  damages  as  may 
be  awarded  against  the  complainant  in  case  the  injunction  is 
dissolved.  If  the  injunction  be  dissolved  in  whole  or  in  part, 
the  complainant  shall  pay,  exclusive  of  legal  interest  and  costs, 
such  damages  as  the  court  shall  award,  not  exceeding  ten  per 
centum,  on  such  part  as  may  be  released  from  the  injunction. 

(§  9.)  "in  all  other  cases,  before  an  injunction  shall  issue,  the 
complainant  shall  give  bond  in  such  penalty,  and  upon  such 
condition  and  with  such  security  as  may  be  required  by  the 
court,  judge  or  master  granting  or  ordering  the  injunction  : 
Provided^  bond  need  not  be  required  when,  for  good  cause 
shown,  the  court,  judge  or  master  is  of  opinion  that  the  injunc-- 
tion  ought  to  be  granted  without  bond. 

Aj>proval  of  hond. —  (§  10.)  "The  bond  in  any  case  may  be 
entered  into  before  the  clerk  of  the  court  from  which  the  writ 
is  to  be  issued  —  the  court,  judge  or  master  granting  or  order- 
ing the  injunction  having  first  approved  the  security,  or  it  may 
be  entered  into  before  such  court,  judge  or  master,  {e) 

(c)  See  Breckenridge  vs.  McCormick,  43  111.  491 ;  Wiley  vs.  Sutherland, 
41  111.  25. 

((f)    Duncan  vs.  Morrison,  Breese,  151 ;  Holmes  vs.  Statelet,  57  111.  209. 
(e)    See  Forni  vs.  Tesson,  51  111.  393. 


614  INJUNCTIONS. 


Suggestion  of  Damages,  etc. 


Bond  to  he  filed  hefore  writ  issues. —  (§  11.)  "All  bonds  re- 
quired by  this  act  shall  be  tiled  with  the  clerk  of  the  court  to 
which  the  writ  is  returnable,  before  such  writ  shall  issue. 

Assessment  of  damages  on  dissolution. —  (§  12.)  "In  all 
cases  where  an  injunction  is  dissolved  by  any  court  of  chancery 
in  this  state,  the  court,  after  dissolving  such  injunction,  and 
before  finally  disposing  of  the  suit,  upon  the  party  claiming 
damages  by  reason  of  such  injunction,  suggesting,  in  writing, 
the  nature  and  amount  thereof,  shall  hear  evidence  and  assess 
sucli  damages  as  the  nature  of  the  case  may  require,  and  to 
equity  appertain,  to  the  party  damnified  by  such  injunction, 
and  may  award  execution  to  collect  the  same :  Provided,  a 
failure  so  to  assess  damages  shall  not  operate  as  a  bar  to  an 
action  upon  the  injunction  bond.  (/") 

Contempt  in  violating. —  (§  13.)  "  Upon  satisfactory  proof 
being  made  in  vacation  that  an  injunction  has  been  violated, 
the  judge  granting  the  same,  or  the  judge  of  the  court  fi'om 
which  the  writ  was  issued,  may  issue  an  attachment  and  cause 
the  party  violating  the  injunction  to  be  brought  before  him. 
Upon  his  being  brought  before  the  said  judge,  unless  he  shall 
disprove  or  purge  the  said  contempt,  the  said  judge  may,  in  his 
discretion,  commit  him  to  jail  until  the  sitting  of  the  court  in 
wliich  the  said  injunction  is  pendftig,  or  take  bail  for  his  ap- 
pearance in  the  said  court  at  the  next  term  thereof,  to  answer 
for  the  said  contempt,  and  to  abide  the  order  of  the  court 
thereon.  (^) 

Motion  to  dissolve  in  vacation. —  (§  14.)  "  A  defendant  may 
move  to  dissolve  or  modify  an  injunction  in  vacation,  either  for 

(/)  SeeTTinAZer  vs.  Winkler,  40  111.  179 ;  Mimer  vs.  Bullard,  43  111.  470 ; 
Buck  vs.  Beekly,  45  111.  100 ;  Beauchamp  vs.  Kankakee  Co.  45  111.  274 ;  Hart- 
well  vs.  Black,  48  111.  301 ;  Smith  vs.  Powell,  50  111.  21 ;  Shaffer  vs.  Sutton, 
49  111.  506 ;  Collins  vs.  St.  Clair,  51  111.  328 ;  Forth  vs.  Town  of  Xenia,  54  111. 
210 ;  Russell  vs.  Rogers,  56  111.  176  ;  Holmes  vs.  Stateler,  57  111.  209 ;  Jevne 
vs.  Osgood,  lb.  340 ;  Brownficld  vs.  Brownfield,  58  111.  152 ;  Hamilton  vs. 
Stuart,  59  111.  330 ;  Albright  vs.  Smith,  6  Chicago  Legal  News,  247. 

ig)  See  The  People,  etc.  vs.  Oilmer,  5  Gilm.  242 ;  Welsh  vs.  Byrng,  38  lU. 
20 ;  Crook  vs.  The  People,  16  111.  534. 


INJUNCTIONS.  615 


Motion  to  Dissolve,  etc. 


want  of  equity  in  the  bill  or  upon  the  coming  in  of  the  answer, 
and  the  judge  of  the  court  from  which  the  injunction  was  issued 
may  hear  and  determine  the  motion  upon  five  days'  notice  of 
the  hearing  having  been  given  to  the  complainant  or  his 
solicitor,  (h) 

Motion  to  dissolve  for  want  of  eqxtity. —  (§  15.)  "  A  motion 
to  dissolve  an  injunction  may  be  made  at  any  time  upon 
answer,  or  for  want  of  equity  on  the  face  of  the  bill. 

Motion  to  he  determined  on  testimony. —  (§  16.)  "Upon  a 
motion  to  dissolve  an  injunction  after  answer,  the  court  shall 
not  be  bound  to  take  the  answer  as  absolutely  true,  but  shall 
decide  the  motion  upon  the  weight  of  testimony,  (i) 

Affidavits  ujpon  hearing  of  motion  to  dissolve. —  (§  17.)  "  The 
complainant  may  support  his  bill,  and  the  defendant  may  sup- 
port his  answer  by  affidavits  filed  with  the  same,  which  may  be 
read  in  evidence  on  the  hearing  of  the  motion  to  dissolve  the 
injunction. 

Continuance  of  motion  to  dissolve. —  (§18.)  "If,  after  a 
motion  is  made  to  dissolve  an  injunction,  the  complainant  in 
the  bill  will  satisfy  the  court  by  his  own  affidavit,  or  that  of 
any  disinterested  person,  that  the  answer,  or  any  material  part 
thereof  (to  be  specified  in  such  affidavit)  is  untrue,  and  that  he 
has  testimony  which  will  disprove  the  answer,  or  such  material 
part  thereof,  which  he  can  produce  at  the  next  term  of  the 
court,  or  at  an  earlier  day,  and  that  he  has  had  no  opportunity 
to  procure  such  testimony  since  the  coming  in  of  the  answer, 
the  court  may  grant  a  continuance  of  such  motion  until  the 
next  term,  or  until  such  testimony  can  be  procured. 

Depositions  may  he  read  on  motion  to  dissolve. —  (§  19.) 
"  The  testimony  of  witnesses  to  be  used  upon  such  motion, 
except  such  as  may  be  contained  in  the  affidavits  filed  with  the 
bill  or  answer,  shall  be  depositions  in  writing,  which  shall  bo 

{h)    SeeWangelin  vs.  Goe,  50  111.  459  ;  Titus  vs.  Mabee,  25  111.  257. 
(i)    See  Gray  vs.  McCance,  11  111.  325. 


616  INJUNCTIONS. 


Appeal,  etc. — When  granted  on  Sunday. 


taken  in  the  same  manner  as  other   testimony  in  cases  in 
chancery. 

Depositions  inay  "be  read  on  final  hearing. —  (§  20.)  "Depo- 
sitions taken  upon  a  motion  to  dissolve  an  injunction  may  be 
read  in  the  final  hearing  of  the  cause. 

Effect  of  an  appeal  on  injunction. —  (§21.)  "No  appeal 
from  a  decree  dissolving  an  injunction  shall  have  the  effect  to 
continue  in  force  the  injunction,  unless  the  appeal  is  prayed  at 
the  time  of  the  entering  of  such  decree,  and  the  court  allowing 
the  same  shall  so  order,  or  unless  the  party  praying  the  appeal 
shall,  within  ten  days  after  the  appeal  is  allowed,  procure  from 
the  supreme  court,  if  in  session,  or  a  judge  thereof  if  in  vaca- 
tion, an  order  directing  that  the  appeal  shall  have  the  effect  to 
continue  such  injunction  in  force ;  and  no  such  order  shall  be 
granted  except  for  good  cause  appearing  in  the  record,  nor 
when  the  bill  is  dismissed  by  the  complainant.  The  supreme 
court,  or  a  judge  thereof,  may,  for  good  cause,  extend  the  time 
for  procirring  such  order. 

Ftirthefr  hond  on  continuing  of  injunction. —  (§  22.)  "  The 
court  or  judge  granting  the  order  for  the  continuance  in  force 
of  any  such  injunction  may  require,  as  a  condition  of  granting 
the  same,  such  farther  bond  and  security,  to  be  filed  with  the 
clerk  of  the  supreme  court,  as  may  be  deemed  equitable. 

When  granted  on  Sunday. —  (§  23.)  "  When  an  application 
shall  be  made  on  a  Sunday  for  a  writ  of  injunction,  and  there 
shall  be  filed  with  the  bill  an  afiidavit  of  the  complainant,  or 
his,  her  or  their  agent  or  attorney,  stating  that  the  benefits  of 
an  injunction  will  be  lost  or  endangered,  or  irremediable  dam- 
age occasioned  unless  such  writ  be  immediately  issued,  and 
giving  the  reasons  for  such  statement,  then  it  shall  be  lawful 
for  any  officer  who  is  authorized  by  the  law  of  this  state  to 
grant  writs  of  injunction,  if  it  appears  to  him  from  such 
affidavit  that  the  benefits  of  an  injunction  will  be  lost  or 
endangered,  or  irremediable  damage  occasioned  unless  such 
writ  be  immediately  issued,  and  if  the  complainant  otherwise 


INJUNCTIONS.  617 


Form  of  Suggestion  of  Damages. 


be  entitled  to  such  writ  under  the  law,  to  grant  a  writ  of 
injunction  on  a  Sunday ;  and  it  shall  be  lawful  for  the  clerk 
to  issue,  and  for  the  sherifi'  or  coroner  to  serve  such  writ  of 
injunction  on  a  Sunday  as  on  any  other  day,  and  all  affidavits 
and  bonds  made  and  proceedings  had  in  such  case  shall  have 
the  same  force  and  effect  as  if  made  or  had  on  any  other 
<lay."(.;') 

2^0.  ^22.     Suggestion  of  damages  oti  the  dissolution  of  am 

i7ijunction. 

In  the Court. 

Term,  18—. 

In  Chancery. 


And  now  on  this day  of ,  18 — ,  comes  the  defend- 
ant, by  his  solicitor,  and  according  to  the  form  of  the  statute  in 
such  case  made  and  provided,  suggests  to  the  court  here,  that 
by  reason  of  the  wrongful  suing  out  of  said  injunction  in  this 
cause,  this  defendant  was  compelled  to,  and  did,  pay  out  and 

expend  divers  sums  of  money,  amounting  to  the  sum  of 

dollars,  for  the  fees  and  cliarges  of  solicitors  and  counsel,  and 
for  other  charges  and  expenses  in  and  about  his  defense  in  that 
behalf;  {Any  other  damages  may  he  here  alleged  in  lilce  man- 
ner ^)  by  means  of  which  premises,  the  defendant  has  sustained 

damages  to  the  amount  of dollars,  and  the  said  damages 

remain  wholly  unpaid  to  the  defendant ;  wherefore  the  defend- 
ant asks  that  said  damages  may  be  assessed  to  him,  against  the 
complainant,  in  pursuance  of  said  statute.  (Jc) 

,  Sol.  for  Defendant. 

(j)    See  Langaher  vs.  Pontiac  &  N.  W.  R.  R.  Co.  Chicago  Legal  News,  190. 
{k)    See  note  (/),  ante,  p.  614. 


CHAPTEE  XLI. 

MISCELLANEOUS    F0KM8. 

During  the  preparation  of  this  work  want  of  space  has  been 
constantly  apprehended,  and  many  less  important  forms  were 
omitted  in  their  proper  places.  It  has  been  thought  advisable 
to  give  some  of  them  a  place  under  the  head  of  "  miscellaneous 
forms." 

No.  223.  Order  where  defendant  appears^  or  is  hrought  into 
court  hy  attachment  and  admits  his  contempt,  that  he  put 
in  his  answer  within  a  specified  time,  (a) 

{Caption,  with  title  of  cause  as  in  No.  79,  ante,  page  198.) 

It  appearing  to  the  court  that  the  defendant  C.  D.  being  in 
contempt  for  not  appearing  or  answering  to  the  bill  of  com- 
plaint in  this  cause,  a  writ  of  attachment  had  issued  against 

him,  directed  to  the  shei'iff  of  the  county  of ,  returnable 

forthwith  I  whereupon  the  sheriff  has  returned  that  he  had 
attached  the  defendant  C.  J).,  and  had  him  in  custody  before 
the  court ;  and  the  said  C.  D.  now  being  before  the  court,  and 
consenting  to  put  in  his  answer,  in  this  suit,  and  to  pay  the 

costs  of  his  contempt,  when  duly  taxed ;  on  motion  of  Mr. , 

solicitor  for  the  complainant,  it  is  ordered  that  the  said  C.  D. 

put  in  his  answer  to  the  bill  of  complaint  within days 

from  the  date  of  this  order,  or  that  the  complainant  may  apply 
to  this  court  for  such  further  order  as  may  be  just. 

No.  22^.    Order  for  commit7nent  of  defendant  for  disobeying 
order  to  put  in  his  answer.  (5) 

{Caption,  with  title  of  cause  as  in  No.  79,  ante,  page  198.) 

An  order  having  been  entered  in  this  cause  on  the day 

of ,  18 — ,  requiring  the  defendant  C.  D.  to  put  iii  his  an- 
swer to  the  bill  of  complaint  within days  from  the  date 

of  said  order,  or  that  in  default  thereof  the  complainant  might 

(a)    See  ante,  pp.  81-84. 
lb)    See  ante,  pp.  83-84. 


MISCELLANEOUS   EOKMS.  619 

Orders. 

be  at  liberty  to  apply  to  tliis  court  for  such  further  order  as  might 
be  just ;  and  it  appearing  to  the  court  that  the  defendant  C.  D. 
has  failed  to  put  in  his  answer  as  required  by  said  order  ;  and 
this  court  now  adjudging  the  said  C.  D.  to  have  been  guilty  of 
the  misconduct  alleged,  and  that  such  misconduct  was  calcu- 
lated to,  or  did  actually  defeat,  impair,  impede  or  prejudice  the 
rights  or  remedies  of  the  complainant  in  this  cause,  it  is  there- 
upon, on  motion  of  Mr.  ,  solicitor  for  the  complainant, 

ordered  that  the  said  C.  D.  be,  and  he  is  hereby  ordered,  to 

stand  committed  to  the  common  jail  of  the  county  of , 

there  to  remain  charged  upon  this  contempt  until  he  shall  have 
put  in  his  answer  as  aforesaid  ;  unless  the  court  shall  see  fit 
sooner  to  discharge  him.  And  it  is  further  ordered  that  a 
warrant  issue  for  that  purpose. 

No.  2^5.  Order  in  case  of  contempt,  for  not  answering  — 
where  defendant  denies  his  contempt  —  directing  the  filing 
of  interrogatories,  etc.  (c) 

{Caption,  with  title  of  cause  as  in  No.  79,  ante,  page  198.) 

It  appearing  to  the  court  that  the  defendant  C.  D.,  being 
in  contempt  for  not  appearing  or  answering  to  the  bill  of  com- 
plaint in  this  cause,  a  writ  of  attachment  had  issued  against 

him,  directed  to  the  sheriff  of  the  county  of ,  returnable 

forthyjith  J  whereupon  the  sheriff  has  returned  that  he  had 
attached  the  defendant  C.  D.,  and  had  him  in  custody  before 
the  court ;  and  the  said  C.  D.  being  now  before  the  court,  and 
denying  that  he  is  guilty  of  the  misconduct  alleged  against 

him ;  it  is  ordered  that  the  complainant  do  within days 

file,  with  the  clerk  of  this  court,  interrogatories  specifying  the 
facts  and  circumstances  alleged  against  the  said  C.  D. ;  and 
that  he  serve  a  copy  thereof  on  the  said  C.  D. ;  and  that  the 
said  C.  D.  put  in  written  answers  to  such  interrogatories,  upon 

oath,  and  file  the  same  within days,  after  the  time  when 

such  interrogatories  are  served  on  him,  in  the  office  of  the  clerl' 
of  this  court.  And  it  is  further  ordered,  that  it  be  referred  to 
the  master  in  chancery  of  this  court,  to  examine  the  said  C.  D., 
on  oath,  upon  the  said  interrogatories;  and  to  take  such  fur- 
ther proofs  as  either  party  may  produce  before  him  in  relation 
to  the  alleged  contempt ;  and  that  he  report  such  answers  and 
proofs  to  this  court.  And  it  is  further  ordered  that  the  said 
sheriff  detain  the  defendant  in  his  custody ;  and  that  the  saif' 
C  D.  attend,  from  day  to  day,  before  this  court,  until  the  fui 
ther  order  of  the  court. 

(c)    See  ante,  pp.  81-84. 


620  MISCELLANEOUS   FOEMS. 

Orders. 

On  a  reference  of  this  nature  the  master  is  not  authorized  to 
receive  the  ex  parte  affidavits  of  witnesses,  unless  the  order  of 
reference  expressly  authorizes  him  to  do  so.  The  parties  must 
produce  and  examine  the  witnesses  before  the  master ;  so  that 
they  may  be  cross-examined  by  the  adverse  party.  (^ 

No.  'B'26.     Order  convicting  defendant  of  a  contempt  after  his 
examination  upon  interrogatories,  [e) 

{Caption,  a/n,d  title  of  cause  as  in  No.  79,  a,nte,  page  198.) 

A  writ  of  attachment  having  been  heretofore  issued  out  of 
and  under  the  seal  of  this  court,  against  the  defendant  C.  D., 
for  his  contempt  in  not  answering  the  complainant^ s  bill,  di- 
rected  to  the  sheriff  of  the  county  of ,  and  returnable 

forthwith',  and  the  said  sheriff  having  returned  that  he  had 
attached  the  said  C.  D.,  and  taken  his  body,  and  had  him  in 
custody  before  the  court ;  and  the  said  C.  D.  having  been  by 
virtue  of  such  attachment  personally  before  the  court,  on  the 
said day  of instant ;  and  denying  the  alleged  con- 
tempt, it  was  thereupon  ordered  that  the  complainant  in  this 

cause  should,  within days,  file  in  the  office  of  the  clerk 

of  this  court  interrogatories  specif^dng  the  facts  and  circum- 
stances alleged  against  the  said  C.  D. ;  and  that  he  serve  a 
copy  thereof  on  the  said  C.  D. ;  and  that  tlie  said  C.  D.  should 
put  in  written  answers  to  such  interrogatories,  upon  oath,  and 
file  the  same  within da.ys  after  the  service  of  such  inter- 
rogatories ;  and  that  it  should  be  referred  to  the  master  in 
chancery  of  this  court,  to  examine  the  said  C.  D.,  on  oath,  upon 
such  interrogatories,  and  to  take  such  further  proofs  as  either 
party  might  produce  before  him  in  relation  to  the  alleged  con- 
tempt ;  and  it  now  appearing  to  the  court  from  the  report  of 
the  said  master,  and  the  answers  and  proofs  thereto  annexed, 
that  the  said  C.  D.  has  committed  the  contempt  with  which  he 
is  charged,  and  this  court  now  adjudging  him  to  have  been 
guilty  of  the  misconduct  alleged,  and  that  such  misconduct  was 
calculated  to,  or  did,  actually  defeat,  impair,  impede  or  preju- 
dice the  riglits  of  the  complainant  in  this  cause ;  it  is  therefore 

ordered,  that  a  fine  of dollars  be,  and  the  same  is  hereby 

imposed  upon  the  said  C.  D.  for  his  said  misconduct.  And  it  is 
further  ordered,  that  the  said  C.  D.  do  pay  to  the  said  complain- 
ant the  costs  and  expenses  of  the  proceedings  for  such  miscon- 

(d)  Gumming  vs.  Wagoner,  7  Paige,  Ch.  603. 

(e)  See  ante,  pp.  81-84. 


MISCELLANEOUS   FORMS.  621 

Orders. 

duct,  and  now  taxed  at  the  sum  of dollars.     And  it  i& 

further  ordered,  that  the  said  C.  D.  be,  and  he  is  hereby  directed 

to  stand  committed  to  the  common  jail  of  the  county  of , 

there  to  remain  charged  with  this  contempt  until  he  shall  have 
fully  answ^ered  the  said  bill  of  complaint,  and  paid  such  fine 
and  costs ;  unless  the  court  shall  see  fit  sooner  to  discharge 
him.     And  that  a  warrant  issue  for  that  purpose. 

Upon  this  order  a  mittiinus,  or  warrant  of  commitment  for 
contempt  in  not  appearing,  wnll  issue. 

No.  ^27.    Order  to  refer  second  or  third  answer  on  the  old 
exceptions.  (/") 

{Cajption,  and  title  of  cause  as  in  No.  79,  ante, page  198.) 

Exceptions  having  been  heretofore  taken  to  the  answer  of  the 
defendant  C.  D,,  and  such  answer  having  been  reported  insuffi- 
cient in  the  matters  of  the  first  and  fourth  exceptions,  the 
defendant  has  put  in  a  second  {or  third)  answer  to  the  bill  in 
this  cause ;  which  answer  the  complainant  alleges  to  be  insuffi- 
cient in  the  matters  of  the  said  first  and  fourth  exceptions :  It 
is  therefore  ordered  that  it  be  referred  to  the  master  in  chancery 
of  this  court,  to  whom  such  exceptions  were  originally  referred, 
to  look  into  the  bill  of  complaint,  the  answer  of  the  defendant, 
and  the  said  first  and  fourth  exceptions,  and  to  report  whether 
such  second  {or  third)  answer  is  sufficient  in  the  matters  of  the 
exceptions,  or  not. 

No.  228.     Order  for  sheriff  acting  as  sergeant-at-arms.  {g) 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

The  defendant  0.  D.  being  in  contempt  for  not  appearing 
and  answering  to  the  bill  of  complaint  in  this  cause,  and  a  com- 
mission of  rebellion  having  been  heretofore  issued  out  of  and 
under  the  seal  of  this  court,  directed  to  certain  commissioners 
therein  named,  commanding  them  to  attach  the  said  C.  D.  as  a 
rebel  and  contemner  of  the  law,  and  to  have  him  before  this 
court,  on  the day  of instant ;  and  the  said  commis- 
sioners having  returned  that  they  had  made  diligent  search  and 
inquiry  after  the  said  C.  D.  so  as  to  attach  his  body  by  virtue 
of  the  said  commission,  but  that  notwithstanding  all  their 
endeavors  they  could  not  meet  Avith  him  for  that  purpose,  as 
by  such   commission  and  the  return   thereto    appears.     It  is 

(/)  See  ante,  pp.  81-84. 
(g)    See  ante,  p.  85. 


MISCELLANEOUS   FORMS. 


Orders. 


thereupon  ordered  that  the  sheriff  of  the  county  of ,  now- 
attending  this  court  at  its  present  term,  and  executing  all  the 
powers  and  duties  of  a  sergeant-at-arms^  do  forthwith  go  and 
take  the  said  C.  D.  into  his  custody,  and  him  safely  keep,  and 
bring  him  immediately  into  this  court,  before  the  court,  to 
answer  for  his  contempt,  and  to  do  and  receive  what  this  court 
shall  thereupon  further  order  in  the  premises.  And  it  is  fur- 
ther ordered  that  the  said  sheriff  do  with  all  convenient  speed 
certify  to  this  court,  under  his  hand,  his  doings  in  the  premises. 
Upon  this  order  a  warrant  to  the  sheriff  acting  as  sergeant-at- 
arms  will  issue. 

No.  2^9.     Order  for  a  sequestration.  (A) 

(Caption,  and  title  of  cause  as  in  No  79,  £iTite,page  198.) 

The  defendant  being  in  contempt  for  not  appearing  and 
answering  the  bill  of  complaint  in  this  cause,  and  a  warrant 
having  been  issued  to  the  sheriff'  of  the  county  of ,  attend- 
ing this  court  at  lisjy^esent  term,  and  as  such,  executing  all  the 
duties  of  a  sergeant-at-arms,  requiring  him  forthwith  to  go  and 
take  the  said  C.  D.  into  his  custody  and  bring  him  into  this 
court  to  answer  for  his  contempt,  in  pursuance  of  an  order  of 

this  court  made  on  the day  of ;  and  the  said  sheriff, 

acting  as  sergeant-at-arms,  having  returned  that  he  had  made 
diligent  search  and  inquiry  after  the  said  C.  D.,  but  that  he  did 
so  abscond  and  secrete  himself  that  he  could  not  be  found  to 
be  apprehended,  as  by  the  said  warrant  and  the  return  thereof 
appears  ;  it  is  therefore  ordered  that  a  commission  of  sequestra- 
tion do  issue  against  the  said  0.  D.,  directed  to  E.  F.,  G.  H.  and 
J.  K.,  commissioners,  directing  them  to  sequester  the  defendant 
C.  D.'s  personal  estate,  and  the  rents,  issues  and  profits  of  his 
real  estate,  until  the  defendant  C.  D.  shall  appear  to  the  bill  of 
complaint  in  this  cause,  clear  his  contempt,  and  this  court  shall 
malce  an  order  to  the  contrary. 

Upon  this  order  being  made,  a  writ  of  sequestration  will 
issue. 

No.  £30.     Order  of  reference  when  defendant  does  not  suhmit 
to  ansiver  exceptions. 

{Caption,  and  title  of  cause  as  iii  No.  79,  ante,  page  198.) 

Exceptions  for  insufficiency  having  been  filed  to  the  answer 
of  the  defendant  C.  1).  on   the day  of last,  and  the 


(h)    See  a?Ue,  p.  86. 


MISCELLANEOUS  FORMS.  623 

Orders. 

eaid  C.  D.  not  having  submitted  to  answer  said  exceptions,  it 
is  ordered  that  it  be  referred  to  the  master  in  chancery  of  this 
conrt,  to  look  into  said  bill  and  answer  of  the  defendant  C  D. 
and  such  exceptions,  and  report  whether  said  exceptions  are 
well  taken  or  not. 

No.  '231.     Order  for  further  answer  after  report  of  master. 

{Caption,  and  title  of  cause  as  in  Wo.  79,  a.nte,  page  198.) 

Tlie  answer  of  the  defendant  C.  D.  having  been  reported 
insufficient  in  the  matters  of  the  hrst  and  fourth  exceptions 
thereto,  by  the  master  in  chancery  to  whom  the  exceptions  of 
the  complainant  to  such  answer  were  referred,  and  the  report 
of  the  said  master  being  approved  by  the  court,  against  tlie 
defendant  C.  D.,  it  is  therefore  ordered  tliat  the  said  0.  D.  put 
in  a  further  answer  to  the  matters  of  the  said  first  and  fourth 

exceptions  within days  from  this  date,  and  pay  the  costs 

of  such  exceptions. 

No.  222.     Order  for  an  attachment  on  third  answer  heing  held 

insufficient. 

( Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

The  third  answer  filed  by  the  defendant  C.  D.  having  been 
reported  insufficient,  on  a  reference  to  the  master  in  chancery 
upon  the  original  exceptions,  in  the  matters  of  the  first  and 
fourth  exceptions,  and  the  report  of  said  master  having  been 
filed  and  having  become  absolute,  it  is  ordered  that  an  attach- 
ment issue  against  the  defendant  C.  D. 

No.  233.     Order  for  examination  of  defendant  on  interroga- 
tories, etc.,  on  third  answer  heing  held  insufficient. 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

The  third  answer  of  the  defendant  0.  D.  having  been  r&- 
ported  insufficient,  on  a  reference  to  the  master  upon  the  origi- 
nal exceptions,  in  tlie  matters  of  the  first  and  fourth  exceptions, 
and  the  report  of  the  said  master  having  been  filed,  and  having 
become  absolute,  an  attachment  was  thereupon  issued  against 
the  said  C.  D.,  in  pursuance  of  an  order  of  this  court  rendered 

on  the day  of last.     And  the  said  C.  D.,  now  being 

personally  before  the  court  by  virtue  of  the  said  attachment, 
and  this  court  now  adjudging  the  defendant  to  have  been  guilty 
of  the  misconduct  alleged,  and  that  such  misconduct  was  calcii- 
»ated  to,  or  actually  did  defeat,  impair,  impede  or  prejudice  the 


624  MISCELLANEOUS    FORMS. 

Orders. 

lights  or  remedies  of  the  complainant  in  this  cause ;  it  is  there- 
fore ordered  that  the  said  C.  D.  be  examined  upon  interroga- 
tories before  the  master  in  chancery  of  this  court,  to  the  points 
wherein  his  said  tliird  answer  is  reported  insufficient ;  and  that 

he  stand  committed  to  the  common  jail  of  the  county  of 

until  he  shall  have  answered  such  interrogatories  to  the  satis- 
faction of  the  said  master,  and  paid  the  costs  incurred  by  reason 

of  his  default,  now  taxed  at dollars ;  and  that  a  warrant 

issue  for  that  purpose.  And  it  is  further  ordered,  that  the 
sheriff  of  said  county  do  keep  the  defendant  in  his  actual  custody 
until  the  court  shall  have  made  some  order  in  the  premises,  and 
that  he  take  the  said  C.  D.  before  the  said  master  to  be  exam- 
ined, at  such  times  as  such  master  shall  appoint. 

No.  234-.     Order  for  leave  to  amend  hill  after  a  plea  to  part 
is  allowed,  {i) 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

The  plea  of  the  defendant  C.  D.  to  the  bill  of  complaint  in 
tliis  cause  having  been,  on  argument,  allowed  as  to  part  of  said 

bill,  on  motion  of  Mr. ,  of  counsel  for  the  complainant,  it 

is  ordered  that  the  complainant  have  leave  to  amend  said  bill 
by,  etc.,  {Here  state  the  manner  in  which  it  is  to  he  amended^ 
upon  payment  of  costs  to  be  taxed.  It  is  further  ordered  that 
such  amendment  be  filed  with  the  clerk  of  this  court  within 
days  from  this  date. 

No.  235.     Order  of  reference  to  the  master,  {j) 

{Proceed  as  in  No.  81,  ante,  page  W2,  to  the  *,  and  con- 
ii/nue :)  That  this  cause  be,  and  the  same  is  hereby,  referred  to 
the  master  in  chancery  of  this  court,  to  inquire  and  state  to 
the  court,  etc.  {Here  insert  the  suhject  matter  of  reference  f) 
and  for  the  better  discovery  of  the  matter  aforesaid,  the  par- 
ties respectively  are  to  produce  before  the  said  master  all  deeds, 
books,  papers  and  writings  in  their  possession,  custody  or 
power  relating  thereto,  and  are  to  be  examined  upon  oath  and 
interrogatories  as  the  said  master  shall  direct ;  and  the  said 
master  will  cause  to  come  before  him  all  such  witnesses  whose 
testimony  he  may  deem  necessary,  and  examine  them  upon 
oath  and  interrogatories  touching  the  matters  aforesaid ;  and 
the  said  master  will  make  his  report  thereon  with  all  con- 

(t)    See  ante,  p.  168. 

(j)    See  ante,  pp.  182-186. 


MISCELLANEOUS  FOKMS.  625 

Orders. 

venient  speed ;  and  if  any  special  questions  shall  arise,  the 
eaid  master  is  at  liberty  to  state  the  same  to  the  court. 

Mo.  236.     Order  of  reference  of  a  plea  of  former  suit 
pend'mg.  {k) 

{CapUon,  and  title  of  cause  as  in  N'o.  79,  ante,  page  198.) 

On  filing  a  plea  in  this  cause  averring  that  there  is  a  former 
suit  depending  in  this  court  for  the  same  matters  as  are 
involved  in  the  present  suit,  it  is  therefore  ordered  that  it  be 
referred  to  the  master  in  chancery  of  this  court,  to  look  into 
the  bill  and  the  plea  in  this  cause,  and  the  bill  in  the  said  plea 
alleged  to  have  been  exhibited  by  the  complainant  against  the 
defendant  previous  to  the  commencement  of  this  suit,  and  into 
the  other  pleadings  and  proceedings  therein,  and  to  report 
whether  the  said  plea  is  true. 

JVb.  237.     Order  directing  plea  to  stand  for  an  answer,  (l) 

{Caption,  and  title  of  cause  as  in  N'o.  79,  smte,page  198.) 

The  plea  of  the  defendant  C.  D.  to  the  bill  of  complaint  in 
this  cause  having  heretofore  come  on  to  be  argued,  and  counsel 
for  the  respective  parties  having  been  heard  thereupon,  it  is 
ordered  that  the  said  plea  do  stand  for  an  answer,  with  liberty 
to  the  complainant  to  except  thereto. 

No.  238.     Order  allowing  the  complaina/nt  to  dismiss  his  hill, 

{Caption,  amd  title  of  cause  as  in  No.  79,  ante,  page  198.) 
The  complainant  applying  to  dismiss  his  bill  in  this  cause, 

on  motion  of  Mr.  ,  solicitor  for  the  complainant,  it  is 

ordered  that  leave  to  dismiss  the  same  be  granted  accordingly, 
on  the  complainant  paying  to  the  defendant  his  costs  in  tms 
suit,  to  be  taxed. 

No.  239.     Order  to  pay  money  into  covH.  (m) 

{Caption,  amd  title  of  cause  as  in  No.  79,  ante,  page  198.) 

On  reading  and  filing  the  bill  and  answer  in  this  cause,  and  on 
motion  of  Mr. ,  solicitor  for  the  complainant,  and  on  hear- 
ing Mr. ,  solicitor  for  the  defendant,  in  opposition  to  said 

(k)  See  ante,  p.  122. 
(Q  See  ante,  p.  130. 
(m)  See  ante,  p.  196.       .  „ 


626  MISCELLANEOUS  FORMS. 

Orders. 

motion,  it  is  ordered,  that  the  defendant  C.  D.  do,  within 

days  from  the  date  of  this  order,  pay  into  the  hands  of  the 
clerk  of  this  court,  in  trust  in  this  cause,  the  sum  of dol- 
lars, admitted  by  the  answer  of  the  defendant  to  be  due  from 
him ;  and  that  when  such  money  is  paid  in  it  be  deposited  by 

Baid  clerk,  in  trust,  in  the Bank  of ,  to  the  credit 

of  this  cause,  there  to  remain  until  the  further  order  of  this 
court. 

No.  ^Jfi.     Final  decree^  dismissing  hill  at  the  hearing,  {n) 

{Proceed  as  in  No.  81,  ante,  page  S02,  to  the  *,  and  cotv- 
ti/ntie:)  That  the  complainant's  said  bill  of  complaint  be  and 
the  same  is  hereby  dismissed,  with  costs  to  the  defendant,  to 
be  taxed. 

No.  2Ji.l.     Order  for  cause  to  stand  over,  to  add  new  jparties.  (o) 

{Caption,  a/nd  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  coming  on  to  be  heard  this  day,  and  counsel  for 
both  parties  having  been  in  part  heard ;  and  it  appearing  to 
the  court  that  E.  F.  and  G.  H.  are  necessary  parties  to  this 
cause,  it  is  ordered  that  this  cause  do  stand  over,  to  the  end 
that  the  complainant  may  make  the  said  E.  F.  and  G.  H.  par- 
ties thereto,  either  by  amendment  or  supplemental  bill,  as  he 
may  be  advised. 

No.  ^Jt.2.     Order  for  cause  to  stand  over  to  supply  proof s.  {p) 

{Caption,  and  title  of  cause  as  in  No.  79,  ante,  page  198.) 

This  cause  coming  on  to  be  heard  this  day,  and  counsel  for 
both  parties  having  been  in  part  heard ;  and  it  apjDcaring  to  the 
court  that  tlie  complainant  has  omitted  to  introduce  proof  of 
the  death  of  E.  F.,  his  intestate,  it  is  ordered,  that  this  cause 
do  stand  over,  to  the  end  that  the  complainant  may  examine 
witnesses  to  prove  the  death  of  such  intestate. 

(n.)   See  ante,  p.  197. 

(o)    See  a7ite,  pp.  165-167. 

(p)  See  ante,  pp.  165-167. 


MISCELLANEOUS  FORMS.  627 

Interrogatories — Answers  to. 

No.  ^Jt3.  Interrogatories  for  the  examination  of  a  jparty  in 
contempt  for  not  answering,  in  i^ursuance  of  No.  ^25,  ante, 
page  619.  (q) 

{Title  of  cause  as  in  No.  ^IfB.,  post,  pa^e  6^8.) 

Interrogatories  to  be  exhibited  on  the  part  of  the  com- 
plainant, for  the  examination  of  C.  D.,  the  defend- 
ant in  this  cause,  pursuant  to  an  order  made  in  said 

cause  on  the day  of ,  18 — . 

First. — Were  you  not,  on  or  about  the  day  of 

last,  or  at  any  other  and  what  time,  duly  served  with  a  sum^ 
mons  in  the  above  entitled  cause  ?  When  and  by  whom  and 
how  was  such  service  made?  Answer  this  interrogatory  fully 
and  particularly. 

Second. — Is  not  the  writ  of  summons  now  shown  to  yon  thp 
one  served,  and  a  copy  of  the  same  left  with  vou  ?  x4>.nswe" 
fully. 

Third. — Were,  etc.  {Here  insert  such  additional  inter 
rogatories  as  may  he  deemed  necessary. ) 

,  Sol.  for  Complaina/nt. 

No.  SJfJf.     Answer  to  interrogatories  iti  the  last  form,  No.  24S. 

{Title  of  cause  as  in  No.  2J{S,  Vos,t,  page  6^8.) 

The  answer  and  examination  of  C.  D.,  the  defendant 
in  this  cause,  to  the  interrogatories  exhibited  by  the 
complainant  for  his  examination,  pursuant  to  an 

order  of  this  court,  made  in  said  cause,  on  the 

day  of ,  18 — . 

To  the  first  interrogatory,  this  defendant  answers  and  says, 
that,  etc. 

To  the  second  interrogatory,  he  answers  and  says,  that,  etc., 
{and  so  on.)  C.  D. 

Sworn  and  subscribed  to  before  me  this day  of , 

18—. 

,  Master  in  Chancery. 


(q)    See  ante,  pp.  81-84. 


628  MISCELLANEOUS  FORMS. 

Master's  Report  upon  Exceptions,  etc. — Further  Answer,  etc. 

No.  ^JfS.     Master's  report  upon  exceptions  to  answer  for 
insujjiciency.  {r) 

In  the Court. 

A.  B.  )  Term,  18— . 

vs.     \  In  Chancery. 
CD.) 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

In  pursuance  of  an  order  of  this  court  made  in  the  above 

entitled  cause,  on  the day  of ,  18 — ,  whereby  it  was 

referred  to  me,  as  master  in  chancery  of  this  court,  to  look  into 
the  complainant's  bill  of  complaint,  the  answer  of  the  defend- 
ant C.  D.,  and  the  exceptions  taken  to  said  answer  by  the  com- 
plainant, and  report  whether  said  exceptions  are  well  taken  or 
not. 

I,  the  said  master  in  chancery,  do  hereby  respectfully  certify 
and  report,  that  having  been  attended  by  the  counsel  of  the 
respective  parties,  and  having  looked  into  said  bill  and  answer, 
and  the  exceptions  taken  thereto,  and  having  duly  considered  the 
same,  I  find  that  the  first  and  fourth  exceptions  to  said  answer 
are  well  taken,  and  that  the  second,  third  and  fifth  exceptions 
are  not  well  taken. 

All  of  which  is  respectfully  submitted. 

,  Master  in  Chancery, 

County. 

No.  ^4.6.     Further  answer  after  exceptions  and  amendment. 

In  the Court. 

Terra,  18—. 

In  Chancery. 


The  further  answer  of  the  defendant  C.  D.  to  the 
original  bill  of  complaint ;  and  the  answer  of  the 
same  defendant  to  the  amended  bill  of  the  com- 
plainant. 
This  defendant,  saving  and  reserving  to  himself  the  same 
benefit  of  exception  to  the  said  original  and  amended  bill,  as 
by  his  former  answer  to  the  said  original  bill,  is  saved  and 

(r)   See  ante,  pp.  158-160. 


MISCELLANEOUS  FOKMS.  629 

Report  of  Master,  etc. — Exceptions  to  Report,  etc. 

reserved  for  answer  thereto,  or  so  much,  etc.,    {as  in  iVb.  67, 
ante,  page  14^,)  answers  and  says,  etc. 

And  this  defendant,  in  further  answer  to  such  original  bill, 
as  to  the  matters  of  the  first  exception  taken  by  the  complain- 
ant to  his  former  answer,  says,  etc.  {and  so  on.) 

And  this  defendant,  for  further  answer  to  the  amendments 
made  to  such  original  bill,  says,  etc. 

• 

iVt?.  ^^7.     Master's  report  as  to  sufficiency  of  defendants 
exa/mmation. 

{Title  of  cause  as  in  No.  ^4^,  ante,  page  628.) 

To  the  Honorable ,  Judge  of  the Court  of  the  County 

of ,  in  the  State  of , 

In  Chancery  sitting: 

In  pursuance  of  an  order  of  this  court  made  in  the  above 

entitled  cause,  on  the day  of ,  18 — ,  whereby  it  was 

referred  to  me,  as  master  in  chancery  of  this  court,  to  examine 
the  defendant  C.  D.  on  interrogatories  to  the  points  wherein 
his  third  answer  to  the  bill  in  this  cause  was  reported  insuf- 
ficient. I,  the  said  master,  do  hereby  respectfully  certify  and 
report  that,  having  been  attended  by  the  counsel  for  the 
respective  parties,  and  having  caused  the  said  C.  D.  to  bo 
brought  before  me,  I  examined  him  upon  oath  upon  the  writ- 
ten interrogatories  filed  for  that  purpose,  and  also  vi/va  voce, 
and  that  his  examination  thereto  is  contained  in  a  schedule 
hereto  annexed,  marked  A.  And  I  do  further  certify  and  report 
that,  in  my  opinion,  the  said  examination  is  sufficient. 

All  of  which  is  respectfully  submitted. 

Dated  at,  etc.  ,  Master  in  Chancery. 

No.  ^^8.    Exceptions  to  master'' s  report  on  exceptions  to 
answer,  {s) 

{Title  of  caicse  as  in  JVo.  ^4^,  ante,  page  628.) 

Exceptions  taken  by  the  complainant  to  the  report 

of  the  master  in  chancery  of  this  court,  to  whom 

it  was  referred  to  report  as  to  the  exceptions  filed 

to  the  answer  of  the  defendant  C.  D. 

First. — For  that  the  said  master  has,  in  and  by  his  said 

report,  certified  that,  etc.     {Here  set  out  the  words  of  the 

report.)    Whereas,  the  said  master  ought  to  have  certified  that 

(«)    See  ante,  p.  157,  ei  seq. 


630  MISCELLANEOUS   FOEMS. 

Agreement  to  Submit  Cause,  etc. — Abstract  of  Pleading,  etc. 

the  exceptions  to  the  answer  of  the  defendant  C.  D.  were  well 
taken,  and  that  the  said  answer  of  the  defendant  C.  D.  wa& 
imperfect,  insufficient  and  evasive  in  the  particulars  ex- 
cepted to. 

Second. — For  that  the  said  master  has  certified,  etc.,  [and 
so  on.) 

In  all  whicli  particulars  the  report  of  the  said  master  is 
erroneous,  and  the  complainant  appeals  therefrom  to  the  judg- 
ment of  this  honorable  court. 

,  Sol.  for  Com/plainant. 

No.  '21)9     Agreement  to  submit  the  cause  on  written  arguments. 

In  the ' Court. 

Term,  18- 

In  Chancery. 

It  is  stipulated  and  agreed  that  this  cause  be  submitted  to 
the  court  on  written  arguments.     The  complainant's  counsel 

to  serve  his  argument  within days,  and  the  defendant's 

counsel  to  answer  the  same  within days  thereafter,  and 

the  complainant's  counsel  to  reply  within days  after  the 

defendant's  argument  shall  have  been  served. 

Dated,  etc.  Sol.  for  Complainant. 

Sol.  for  Defendant. 

No.  '250.     Abstn^act  of  pleadings,  etc. 

In  the Court. 

Term,  18—. 

In  Chancery. 

The  bill  in  this  cause  was  filed  on  the day  of 18 —  ; 

The  answer  was  filed  on  the day  of ,  18  — ;  and  the 

replication  on  the day  of ,  18 — .  The  following  wit- 
nesses were  examined  on  the day  of ,  18 — ,  before 

the  master  in  chancery,  in  pursuance  of  an  order  of  reference, 

made  on  the day  of ,  18 — ,  to-wit :  E.  F.  and  G.  H. 

on  the  part  pf  the  complainant,  and  J.  K,  and  L.  M.  on  the 
part  of  the  defendant.  The  following  documents  were  also 
produced,  to-wit :  etc. 

The  object  of  the  bill  is  to  procure  a  conveyance  from  the 
defendant  of  the  real  estate  described  in  the  bill,  and  being  the, 
etc.     {Here  insert  the  description.) 


MISCELLANEOUS   FORMS. 


631 


Abstract,  etc. — Brief  and  Points,  etc. 


BILL. 

States  that  before  complainant 
purchased  lot  7,  etc.,  L.  M.  owned  the 
improvements,  etc. 

Lot  9  was  leased  to  L.  M.  on,  etc., 
but  by  an  agreement,  etc. 


On  the day  of 

parties,  etc. 


-,  etc.,  both 


Complainant  paid,  etc. 

Usual  charge  of  confederacy,  etc. 

Answer  on  oath  prayed  for. 

Prayer  for  inj  unction ;  that  defend- 
ant may  be  decreed  to  execute  con- 
veyance ;  and  for  general  relief. 

REPLICATION. 

For  complainant,  E.  F.  testifies 
that,  etc. 

G.  H.  testifies  that,  etc. 


ANSWER. 

Admitted.  But  the  defendant,  on, 
ere,  purchased  of  L.  M.  all  the  im» 
I)r<jvemeuts. 

Denies,  etc. 

Substantially  admitted. 
Denied. 


General  traverse,  and  usual  con- 
clusion. 


For  defendant,  J.  K.  testifies  that, 
etc. 

L.  M,  testifies  that,  etc. 


In  the 


N'o.  251.     Brief  and  points  on  heai^ig. 


court. 


In  Chancery. 


Term,  1&— , 


The  complainant  lias  a  perfect  remedy  at  law  whereby  he 
may  avail  himself  of  every  ground  of  complaint  set  fortn  in 
the  bill. 

Authorities  cited. 

IL 

The  court  of  chancery  will  not  assume  jurisdiction  in  this 
case  upon  the  ground  of  its  being  a  bill  of  peace.     Because, 

First. — The  bill  is  iiled  only  against  a  single  party,  which 
party  has  neither  commenced  nor  threatened  to  commence  i 
multiplicity  of  suits,  etc. 

Second. — The  apprehensions  of  the  complainant  that,  etc. 

Third. — That,  etc. 

Authorities  cited. 


632  MISCELLANEOUS  FORMS. 

Brief  and  Points,  etc. 
III. 

The  defendants  are  authorized  by  the  act  of,  etc.,  to  oass  tLe 
ordinance  in  question. 
Authorities  cited. 

IV. 

The  ordinance  is  a  reasonable  regulation  of  trade,  etc. 
Authorities  dted. 


I 


CHAPTEE  XLII. 

PRACTICE    IN    THE    SUPEEME    AND    APPELLATE    COURTS. 

Section  1.  Jurisdiction  op  the  Supreme  Court. 

2.  Jurisdiction  op  Appellate  Court,  etc. 

3.  Agreed  Cases. 

4.  Writ  op    Error  —  Supersedeas. 

5.  Appeals. 

6.  Records  op  Inperior  Courts. 

7.  Docket. 

8.  Assignment  op  Error  and  Proceedings  Thereon. 

9.  Motions. 

10.  Suggestions  op  Diminution  op  Record. 

11.  Original  Papers. 

13.  Abstract  op  the  Record. 

13.  Brief  and  Argument. 

14.  Advance  Fee  to  Clerk. 

15.  Cases  taken  prom  Appellate  to  the  Supreme  Court. 

16.  Judgments. 

17.  Executions. 

18.  Rehearing. 

19.  Licensing  Attorneys  —  Striking  Names  prom  the  Roll. 

20.  Library. 

SECTION  L 

JURISDICTION    OF    THE    SUPREME    COURT. 

By  the  first  section  of  Article  YI  of  the  Constitution  of 
Illinois  (1870): 

"The  judicial  powers,  except  as  in  this  article  is  other- 
wise provided,  shall  be  vested  in  one  supreme  court,  circuit 
•courts,  justices  of  the  peace,  police  magistrates,  and  such 
other  courts  as  may  be  created  by  law  in  and  for  cities  and 
incorporated  towns." 

The  judiciary  of  this  state  cannot  exercise  any  power  or 
authority  except  such  as  is  granted  by  the  Constitution,  [a) 

(a)    Field  vs.  The  People,  2  Scam.  79. 


634  SUPREME  AND  APPELLATE  COURTS. 

Jurisdiction  of  the  Supreme  Court. 

"  Tlie  supreme  court  shall  consist  of  seven  judges,  and 
shall  have  original  jurisdiction  in  cases  relating  to  the  reve- 
nue, in  niandavius  and  habeas  oorims^  and  appellate  jurisdic- 
tion in  all  other  cases.  One  of  said  judges  shall  be  chief 
justice  ;  four  shall  constitute  a  quorum,  and  the  concurrence 
of  four  shall  be  necessary  to  every  decision."  [IS) 

Original  Jurisdiction. — The  provision  of  the  Constitution 
conferring  original  jurisdiction  on  the  supreme  court  in 
cases  relating  to  the  revenue,  laandamus  and  hn.heas  corjjus^ 
are  not  to  be  construed  as  making  such  jurisdiction  exclu- 
sive, (c) 

In  revenue  cases. —  Section  260  of  the  Revenue  Act  pro- 
vides that 

"When  suit  is  instituted  in  behalf  of  the  state  it  may  be  in 
either  division  of  the  supreme  court,  or  in  the  Sangamon 
count}^  circuit  court,  or  in  any  court  of  record  in  this  state  hav- 
ing jurisdiction  of  the  amount ;  and  process  may  be  directed 
to  any  county  in  the  state.  In  any  jDroceedings  against  any 
officer  or  person  whose  duty  it  is  to  collect,  receive,  settle  for 
or  pay  over  any  of  the  revenues  of  the  state,  vv^hether  the 
proceeding  be  by  suit  on  the  bond  of  such  officer  or  person, 
or  otherwise,  the  court  in  which  such  proceeding  is  pending 
shall  have  power,  in  a  summary  way,  to  compel  such  officer 
or  person  to  exhibit,  on  oath,  a  full  and  fair  statement  of  all 
moneys  by  him  collected  or  received,  or  which  ought  to  be 
settled  for  or  paid  over,  and  to  disclose  all  such  matters  and 
things  as  may  be  necessary  to  a  full  understanding  of  the 
case;  and  the  court  may,  upon  hearing,  give  judgment  for 
such  sum  or  sums  of  money  as  such  officer  or  person  is  liable 
in  law  or  equity  to  pay.  And  if,  in  a  suit  upon  the  bond  of 
any  such  officer  or  person,  he  or  his  sureties,  or  any  of  them, 
shall  not  for  any  reason  be  liable  upon  the  bond,  the  court 
may,  nevertheless,  give  judgment  against  such  officer  or  per- 

{h)    §  2,  Art.  VI,  Const,  of  1870. 

(c)    Hundley  vs.  Commissioners  etc.,  67  111.  559. 


SUPREME  AND  APPELLATE  COURTS.  635 

Original  Jurisdiction  of  Supreme  Court. 

son,  or  against  sucli  officer  and  such  of  his  sureties  as  are 
liable,  for  the  amount  ho  or  they  may  be  liable  to  pay,  with- 
out regard  to  the  form  of  the  action  or  pleadings." 

Section  261  provides  that 

"When  suit  has  been  instituted  by  the  auditor,  any  party 
aggrieved  may  proceed  under  the  judgment  obtained,  upon 
the  bond,  by  writ  of  inquiry  of  damages,  as  in  other  cases 
upon  bonds." 

In  section  262  it  is  provided  that 

"  Cities,  towns,  villages  or  corporate  authorities,  or  per- 
sons aggrieved,  may  prosecute  suit  against  any  collector  or 
other  officer  collecting  or  receiving  funds  for  their  use,  by 
suit  upon  the  bond,  in  the  name  of  the  people  of  the  state 
of  Illinois,  for  their  use,  in  any  court  of  competent  jurisdic- 
tion, whether  the  bond  has  been  put  in  suit  at  the  instance 
of  the  auditor  or  not ;  and  in  case  of  judgment  thereon,  the 
auditor  may,  if  he  shall  so  elect,  have  a  writ  of  inquiry  of 
damages  for  any  amount  that  may  be  due  to  the  state  treas- 
ury from  such  officer.  Cities,  towns,  villages  and  other  cor- 
porate authorities  or  persons  shall  have  the  same  rights  in 
any  suits  or  proceedings  in  their  behalf,  as  is  provided  in 
case  of  suits  by  or  in  behalf  of  the  state."  {d) 

The  rules  of  the  supreme  court  in  relation  to  cases  in  rev- 
enue suits  are  as  follows  : 

Icule  17. —  "In  proceedings  in  original  actions  relating  to 
the  revenue,  the  process  or  notice  of  a  motion  shall  be 
served  on  the  defendant  at  least  twenty  days  before  the 
first  day  of  the  term.  If  there  shall  not  be  twenty  days 
between  the  day  of  service  and  the  first  day  of  the  term, 
the  cause  may  be  continued  on  the  application  of  the  de- 
fendant. 

Rule  18. — "In  such  original  actions,  \f  a  declaration  set- 
ting forth  the  cause  of  action  shall  not  be   filed  at  least 

(d)    Rev.  Stat.  (1874)  900;  Rev.  Stat.  (1877J  856. 


636  SUPREME  AND  APPELLATE  COURTS. 

Original  Jurisdiction  of  Supreme  Court. 

twenty  days  before  the  first  day  of  the  term,  the  cause  may 
be  continued  on  the  application  of  the  defendant."  {e) 

Mandani'us. —  For  proceedings  in  mandamus^  see  Puter- 
baugh's  Com.  Law  PL  and  Pr.,  ch.  vi,  pp.  671-683. 

The  supreme  court  is  authorized  to  issue  writs  of  manda- 
TTius.  Its  process  must  run  in  the  name  of  the  people  of 
the  state  of  Illinois,  bear  teste  in  the  name  of  the  chief  jus- 
tice, be  signed  by  the  clerk  of  the  court  for  the  grand  divi- 
sion from  which  it  is  issued,  dated  when  issued,  sealed  with 
the  seal  of  the  court,  and  made  returnable  according  to  law, 
or  such  rules  or  orders  as  may  or  have  been  prescribed  by 
the  court,  and  shall  be  executed  by  the  officer  or  person  to 
whom  it  is  directed,  in  any  county  or  place  in  this  state,  in 
the  usual  manner  that  process  is  or  may  be  required  to  be 
executed  and  returned.  (/) 

The  rule  of  the  supreme  court  in  relation  to  mandamus  is 
as  follows : 

Rule  19. — "Before  an  application  for  a  writ  of  mandamus 
will  be  heard  by  this  court,  the  applicant  must  show  that 
all  the  parties  interested  in  the  subject-jnatter  to  be  reached 
or  eifected  by  the  issuance  of  the  writ  have  been  notified  in 
writing  of  the  time  and  place  of  the  intended  application,  at 
least  ten  days  previous  thereto,  unless  the  court  for  special 
reasons  shall  otherwise  direct."  {g) 

By  the  practice  act  it  is  not  necessary,  in  an  action  of  man- 
damus., to  set  out  the  cause  of  action  in  the  writ,  but  it  is 
sufficient  to  summon  the  defendant  in  a  summons  in  the 
usual  form,  commanding  him  to  appear  and  answer  the 
plaintiff  in  an  action  of  mandamus.,  and  the  issue  is  made 
up  by  answering,  pleading  or  demurring  to  the  petition,  as 
in  other  cases.  (A) 

(e)     55  111.  xxii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  ix. 
(/)   Rev.  Stat.  (1874),  328;  Rev.  Stat.  (1877)  321. 
{g)    55  111.  xxii;  Puterbaugh's  Cora.  Law  PI.  and  Pr.  ix. 
\h)    Rev.  Stat.  (1874)  776;   Rev.  Stat.  (1877)  735;    The  People  vs.  Glenn, 
70  111.  232. 


SUPEEME  AND  APPELLATE  COURTS.  637 

Appellate  Jurisdiction  of  Supreme  Court. 

The  first  section  of  the  statute  in  relation  to  mandamus 
provides 

"That  upon  the  filing  of  a  petition  for  a  mandamus  the 
clerk  of  the  court  shall  issue  a  summons  in  like  form  as 
other  summons  in  suits  at  law,  commanding  the  defendant 
to  appear  at  the  return  term  thereof,  and  show  cause  why  a 
writ  of  mandamus  should  not  be  issued  against  him.  If  the 
summons  is  issued  in  vacation,  it  shall  be  returnable  on  the 
first  day  of  the  next  term  ;  or,  if  in  term  time,  it  may  be 
made  returnable  on  any  day  of  the  term,  not  less  than  five 
days  after  the  date  of  the  writ."  (^) 

Habeas  corpus. —  For  proceedings  in  habeas  corpus^  see 
Puterbaugh's  Com.  Law  PI.  and  Pr,,  ch.  xviii,  pp.  712-731, 

The  supreme  court  is  authorized  by  the  statute  to  issue 
the  writ  of  habeas  corpus,  (j)  But  there  is  no  provision  in 
the  statute  giving  the  judges  in  vacation  power,  like  circuit 
judges,  to  issue  the  writ,  and  determine  the  case ;  and  it 
would  seem  that  applications  for  the  writ  can  only  be  made 
to  the  court  in  session. 

Appellate  Jueisdigtion. — The  appellatejurisdictionof  the 
supreme  court  is  exercised  in  cases  brought  before  it  for 
review  by  appeal  or  writ  of  error.  And  only  in  such  cases 
as  is  or  may  be  provided  by  law.  {k)  And  a  joinder  in 
error  will  not  confer  jurisdiction  in  a  case  where  the  con- 
stitution has  not  given  it.  (/)  It  will  give  jurisdiction  of  the 
person,  but  not  of  the  subject-matter,  (m) 

A  case  cannot  be  heard  in  the  supreme  court  by  appeal  or 
writ  of  error  until  after  a  final  judgment  or  decree  in  the 

(0    Rev.  Stat.  (1874)  691;  Rev.  Stat.  (1877)  656. 

(i)    Rev.  Stat.  (1874)  328;  Rev.  Stat.  (1877)  321. 

(k)  0.  <&  Miss.  R.  R.  Co.  vs.  Lawrence  Co.,  27  111.  50;  Hobson  vs.  Paine, 
40  111.  26;  Holden  vs.  Herkimer,  53  111.  258;  Moore  vs.  Mansfield,  47  111.  169; 
Winkleman  vs.  The  People,  50  111.  449;  Peake  vs.  The  People,  76  111.  289. 

(0      The  People  vs.  Peggy  Royal,  1  Scam.  557. 

(»j)    Woodside  vs.  Woodside,  21  111.  207. 


638  SUPREME  AND  APPELLATE  COURTS. 

Appellate  Jurisdiction  of  Supreme  Court. 

court  below.  (?})  There  must  be  a  final  disposition  of  the 
case  as  to  all  parties.  A  cause  of  action  cannot  be  reviewed 
as  to  one  party  at  one  time,  and  as  to  another  party  at 
another  time,  (o) 

Whenever  a  decision  of  an  inferior  court  is  made  which 
finally  disposes  of  the  subject-matter  of  litigation,  so  far  as 
the  court  is  concerned,  of  which  a  record  can  be  made, 
which  decides  the  rights  of  property  or  personal  liberty,  the 
same  may  be  reviewed  by  tlie  superior  court,  (jj) 

An  appeal  or  writ  of  error  does  not  lie  from  an  interlocu- 
tory decree  or  judgment.  (7) 

Writs  of  error  and  appeals  may  be  taken  from  judgments 
on  awards ;  {r)  from  final  judgments  upon  the  reports  of 
auditors  in  an  action  of  account ;  (.?)  from  decisions  upon 
tnandamus  /  it)  quo  ivarranto  y  [u)  condemnation  cases  ;  {y) 
contested  election  cases ;  {w)  escheat  cases ;  {x)  from  an 
order  of  an  inferior  court  suspending  an  attorney  from  prac- 

{n)  Cunningham  vs.  Loomas,  17  111.  555;  Oder  vs.  Putnam,  22  III.  38; 
Cruel  vs.  Keener,  17  111.  242;  Gage  vs.  Ekh,  56  111.  297;  Phelps  vs.  Fishes, 
63  111.  201;  Walker  vs.  Oliver,  63  111.  199;  Williams  vs.  LaValle,  64  111.  110; 
The  People  vs.  Neal,  8  Bradwell,  App.  C.  R.  181;  Trustees  of  Schools  vs. 
School  Directors,  88  111.  100. 

(o)  Thompson  vs.  Follansbee,  55  111.  427;  Freeman  on  Judgments,  §  28; 
The  People  vs.  McFarland,  3  Bradwell,  App.  Ct.  R.  237;  see  Waugh  vs. 
Suter,  lb.  271. 

[p)  Sloo  vs.  The  State  Bank,  1  Scam.  428;  Stewart  vs.  The  People,  3 
Scam.  395;  Harrison  vs.  Singleton,  2  Scam.  21;  Myers  vs.  Manny,  63  111. 
211. 

{q)  Keel  vs.  Bentley,  15  111.  228;  Cornelius  vs.  Coons,  Breese,  15;  Penti- 
cost  vs.  Magahee,  4  Scam.  326;  Hayes  vs.  Caldwell,  5  Gilm.  33;  Fleece  vs. 
Russell,  13  111.  41;  Woodside  vs.  Woodside,  21  111.  207;  Gage  vs.  Rohrback, 
56  111.  262;  Gage  vs.  Eich,  lb.  297;  Wright  vs.  Smith,  76  111.  216;  see  ante, 
195-196;  Puterbaugh's  Com.  Law  PI.  and  Pr.  814. 

(r)    Rev.  Stat.  (1874)  150;  Rev.  Stat.  (1877)  148. 

(s)    lb.  102;  lb.  98. 

(t)    lb.  092;  lb.  659. 

(m)    lb.  788;  lb.  748. 

(f)     lb.  477;  lb.  466. 

iw)  lb.  460;  lb.  457;  Hall  vs.  Thode,  75  111.  173. 

(x)    lb.  480;  lb.  469. 


SUPREME  AND  APPELLATE  COURTS.  639 

Appeals  and  Writs  of  Error  from  Appellate  Court. 

tice ;  {y)  and  from  tlie  final  judgment  of  tlie  circuit  court  on 
a  certiorari  at  common  law,  iz) 

Appeals  and  writs  of  error  from  appellate  court. — Section 
8  of  the  act  of  1877,  to  establish  appellate  courts,  provides 
that 

"The  said  appellate  courts  created  by  this  act  shall  ex- 
ercise appellate  jurisdiction  only,  and  have  jurisdiction  of  all 
matters  of  appeal,  or  writs  of  error  from  the  final  judgments, 
orders  or  decrees  of  any  of  the  circuit  courts,  or  the  superior 
courts  of  Cook  county,  or  from  the  city  courts  in  any  suit  or 
proceeding  at  law,  or  in  chancery  other  than  criminal  cases, 
and  cases  involving  a  franchise  or  freehold  or  the  validity  of 
a  statute.  Appeals  and  writs  of  error  shall  lie  from  the  final 
orders,  judgments  or  decrees  of  the  circuit  and  city  courts, 
and  from  the  superior  court  of  Cook  county,  directly  to  the 
supreme  court  in  all  criminal  cases  and  in  cases  involving  a 
franchise  or  freehold  or  the  validity  of  a  statute.  In  all  cases 
determined  in  said  appellate  courts,  in  actions  ex  contractu, 
wherein  the  amount  involved  is  less  than  one  thousand  dol- 
lars ( si, 000),  exclusive  of  costs,  and  in  cases  sounding  merely 
in  damages,  wherein  the  judgment  of  the  court  below  is  less 
than  one  thousand  dollars  (iBl,000),  exclusive  of  costs,  and 
the  judgment  is  atfirmed  or  otherwise  finally  disposed  of  in 
the  appellate  court,  the  judgment,  order  or  decree  of  the 
appellate  court  shall  be  final,  and  no  appeal  shall  lie  or  writ 
of  error  be  prosecuted  therefrom  :  Provided,  the  term  ex 
contractu,  as  used  in  this  section,  shall  not  be  construed  to 
include  actions  involving  a  penalty.  In  all  other  cases 
appeals  shall  lie  and  writs  of  error  may  be  prosecuted  from 
the  final  judgments,  orders  or  decrees  of  the  appellate  courts 
to  the  supreme  court :  Provided,  cdso,  that  if  in  any  case  a 
majority  of  the  judges  of  the  appellate  court  shall  be  of 
opinion  that  a  case  decided  by  them  involving  a  less  sum 
than  one  thousand  dollars  ($1,000),  exclusive  of  costs,  also 

{y)     Winhleman  vs.  The  People,  50  111.  449. 

(2;)     Trustees  of  Schools  vs.  School  Directors,  88  111.  100. 


640  SUPREME  AND  APPELLATE  COURTS. 

Appeals  and  Writs  of  Error  from  Appellate  Court. 

involves  questions  of  law  of  such  importance,  either  on. 
account  of  principal  or  collateral  interests,  as  that  it  should 
be  passed  upon  by  the  supreme  court,  they  may  in  such  cases 
grant  appeals  and  writs  of  error  to  the  supreme  court  on 
petition  of  parties  to  the  cause,  in  which  case  the  said  appel- 
late court  shall  certify  to  the  supreme  court  the  grounds  of 
granting  said  appeal."  {a) 

Section  90  of  the  Practice  Act,  added  by  amendment  by 
the  act  of  1877,  provides  that 

"In  all  criminal  cases,  and  in  all  cases  where  a  fran- 
chise or  freehold  or  the  validity  of  a  statute  is  involved, 
and  in  all  other  cases  where  the  sum  or  value  in  the 
controversy  shall  exceed  one  thousand  dollars  (§1,000), 
exclusive  of  costs,  which  shall  be  heard  in  any  of  the 
appellate  courts  upon  errors  assigned,  if  the  judgment  of 
the  appellate  court  be  that  the  order,  judgment  or  decree 
of  the  court  below  be  affirmed,  or  if  final  judgment  or  decree 
be  rendered  therein  in  the  appellate  court,  or  if  the  judg- 
ment, order  or  decree  of  the  appellate  court  be  such  that  no 
further  proceedings  can  be  had  in  the  court  below,  except  to 
carry  into  effect  the  mandate  of  the  appellate  court,  any 
party  to  such  cause  shall  be  permitted  to  remove  the  same 
to  the  supreme  court  by  appeal  or  writ  of  error,  in  the  same 
manner  as  provided  in  sections  sixty-seven  (67)  and  seventy 
(70)  of  this  act  for  appeals  to  said  appellate  court :  Provided, 
that  such  appeal  may  be  prayed  for  at  any  time  within 
twenty  (20)  days  after  the  rendition  of  such  judgment,  order 
or  decree,  whether  such  appellate  court  be  in  session  or  not ; 
and  if  such  appeal  be  prayed  for  in  vacation,  any  one  or  more 
of  the  judges  of  such  appellate  court  may  make  and  sign  all 
orders  necessary  for  the  perfecting  of  such  appeal,  and  the 
clerk  shall  enter  up  such  orders  as  part  of  the  record  in  the 
case;  and  provided,  further,  that  in  all  cases  where  the  judg- 
ment, order  or  decree  is  for  the  recovery  of  money  only,  if 
the  judgment,  order  or  decree  of  the  inferior  or  appellate 

(a)  Laws  of  1877,  p.  69;  Rev.  Stat.  (1877)  323;  Hartshorn  vs.  Daicson, 
2  Bradwell,  App.  Ct.  R.  80;  City  of  Chicago  vs.  Valcum  Iron  Works,  lb.  189. 


SUPEEME  AND  APPELLATE  COURTS.  641 

Jurisdiction  of  Appellate  Courts,  etc. 

court  be  affirmed  bj  tlie  supreme  court,  or  the  appeal  or 
writ  of  error  be  dismissed,  the  supreme  court  may  enter 
judgment  against  the  appellant  or  plaintiff  in  error  for  dam- 
ages, not  exceeding  ten  (10)  per  centum  on  the  amount  of 
the  judgment  recovered,  and  shall  award  execution  therefor 
as  on  other  judgments."  (h) 

Appeals  from  circuit  courts^  etc. —  Section  88  of  the  Prac- 
tice Act,  as  amended  by  the  act  of  1879,  (c)  provides  that 

"Appeals  and  writs  of  error  to  circuit  courts,  the  superior 
court  of  Cook  county,  the  criminal  court  of  Cook  county, 
county  courts  and  city  courts,  in  all  criminal  cases,  below 
the  grade  of  a  felony,  shall  be  taken  directly  to  the  appellate 
court,  and  in  all  criminal  cases  above  the  grade  of  misde- 
meanors ;  and  cases  in  which  a  franchise  or  freehold  or  the 
validity  of  a  statute  or  construction  of  the  constitution  is 
involved,  and  in  all  cases  relating  to  revenue,  or  in  which 
the  state  is  interested  as  a  party  or  otherwise,  shall  be  taken 
directly  to  the  suj)reme  court,"  etc.  {(I) 

SECTION  II. 

JTJKISDICTION    OF   APPELLATE    COURTS,    ETC. 

It  was  provided  in  Section  II,  Article  VI,  of  the  Constitu- 
tion of  1870,  that 

"After  the  year  of  our  Lord  1874,  inferior  appellate  courts 
of  uniform  organization  and  jurisdiction  may  be  created  in 
districts  formed  for  that  purpose,  to  which  such  appeals  and 
writs  of  error  as  the  general  assembly  may  provide  may  be 
prosecuted  from  circuit  and  other  courts,  and  from  which 
appeals  and  writs  of  error  shall  lie  to  the  supreme  court  in 
all  criminal  cases,  and  cases  in  which  a  franchise  or  freehold, 

(6)    Laws  of  1877,  p.  153;  Rev.  Stat.  (1877)  746. 
(c)    Laws  of  1879,  p.  222;  Bradwell's  ed.  169. 

{d)  See  Hartshorn  vs.  Dawson,  2  Bradwell's  App.  Ct.  R.  80;  City  of  Chi- 
cago vs.  Valcum  Iron  Works,  lb.  189. 


642  SUPREME  AND  APPELLATE  COURTS. 

Jurisdiction  of  Appellate  Courts,  etc. 

or  the  validity  of  a  statute,  is  involved,  and  in  such  other 
cases  as  may  be  provided  by  law.  Such  appellate  courts 
shall  be  held  by  such  number  of  judges  of  the  circuit  courts, 
and  at  such  times  and  places,  and  in  such  manner,  as  may 
be  provided  by  law ;  but  no  judge  shall  sit  in  review  upon 
cases  decided  by  him,  nor  shall  said  judges  receive  any  ad- 
ditional compensation  for  such  services." 

Under  the  above  provision  of  the  constitution  the  legis- 
lature of  1877  passed  an  act  to  establish  appellate  courts, 
dividing  the  state  into  four  districts,  —  first,  second,  third  and 
fourth, —  and  providing  that  each  shall  be  held  by  three  of 
the  judges  of  the  circuit  court,  to  be  assigned  by  the  su- 
preme court.  Two  of  the  judges  so  assigned  in  each  district 
to  constitute  a  quorum,  and  the  concurrence  of  two  to  be 
necessary  to  every  decision,  {e) 

Ajypellate  jurisdiction  only. — Section  8  of  the  act  provides 
that  the  said  appellate  courts  created  by  this  act  shall  exer- 
cise appellate  jurisdiction  only,  and  have  jurisdiction  of  all 
matters  of  appeal,  or  writs  of  error,  from  the  final  judg- 
ments, orders  or  decrees  of  any  of  the  circuit  courts,  or  the 
superior  courts,  of  Cook  county,  or  from  the  city  courts,  in 
any  suit  or  proceeding  at  law,  or  in  chancery,  other  than 
criminal  cases,  and  cases  involving  a  franchise  or  freehold, 
or  the  validity  of  a  statute,  if) 

P-ovner  of  court.  — Tlie  appellate  courts  are  vested  with  all 
powers  and  authority  necessary  to  carry  into  complete  exe- 
cution all  their  judgments,  decrees  and  determinations  in  all 
matters  within  their  jurisdiction,  according  to  the  rules  of 
the  common  law  and  of  the  law  of  this  state. 

Practice  and  pleading. — The  process,  practice  and  plead- 
ings in  said  courts  shall  be  uniform,  and  shall  be  the  same 
as  the  process,  practice  and  pleadings  prescribed  in  and  for 

(e)    Laws  of  1877,  p.  69;  Rev.  Stat.  (1877)  322-323. 
(/)  Laws  of  1877,  p.  69;  Rev.  Stat.  (1877)  323, 


SUPEEME  AND  APPELLATE  COURTS.  643 

Jurisdiction  of  Appellate  Courts,  etc. 

tlie  supreme  court  of  this  state,  so  far  as  practicable ;  and 
the  judges  of  said  appellate  court  may  establish  such  uni- 
form rules  for  the  keeping  of  dockets,  records  and  proceed- 
ings for  the  regulation  of  said  court  as  shall  be  deemed  most 
conducive  to  the  due  administration  of  justice,  except  as 
otherwise  provided  bj  law. 

May  enter  judgment  in  vacation. — The  judges  of  the  said 
appellate  courts  respectively,  or  a  majority  of  them,  may 
enter  orders  and  judgments  in  vacation  in  all  cases  which 
liave  been  argued,  or  submitted  to  the  courts  during  any 
term  thereof,  and  which  shall  have  been  taken  under  advise- 
ment. 

To  what  district. — Appeals  and  writs  of  error  may  be 
taken  to  the  appellate  court  in  the  district  in  which  tlie  case 
is  decided ;  or,  by  consent  of  the  parties,  to  any  other  dis- 
trict. 

Opinions. —  In  case  the  judgment,  order  or  decree  from 
■which  an  appeal  or  writ  of  error  may  have  been  prosecuted 
shall  be  affirmed  by  the  appellate  court,  such  court  shall 
make  an  order  affirming  the  same ;  and  in  case  such  judg- 
ment, order  or  decree  shall  be  reversed  and  the  cause  re- 
manded to  the  court  from  which  such  appeal  or  writ  of 
error  shall  have  been  prosecuted  for  a  new  trial  thereon, 
said  appellate  court  shall  state  briefly  in  writing  the  reasons 
for  such  reversal,  and  file  the  same  with  the  files  in  said 
cause:  Provided.,  that  the  reasons  so  filed  shall  not  be 
binding  authority  in  any  cause  or  proceeding  other  than 
that  in  which  they  may  be  filed  or  given,  {g) 

Appeals  to  appellate  court — hond. —  Section  68  of  the  Prac- 
tice Act,  as  amended  by  act  of  1877,  provides  that 

"Appeals  from,  and  writs  of  error  to,  all  circuit  courts,  the 
superior  court  of  Cook  county,  and  city  courts,  and  from  other 

{g)    Laws  of  1877,  p.  69;  Rev.  Stat.  (1877)  322-324. 


644  SUPKEME  AND  APPELLATE  COURTS. 


Jurisdiction  of  Appellate  Courts,  etc. 


courts  from  whicli  such  appeals  and  writs  of  error  may  be 
allowed  by  law,  may  be  taken  to  the  appellate  courts,  from  all 
final  judgments,  orders  and  decrees,  except  as  hereinafter 
stated :  Provided^  such  appeals  shall  be  prayed  for  and  allowed 
at  the  term  at  which  the  judgment,  order  or  decree  was  ren- 
dered :  And,  provided,  tlie  party  praying  for  such  appeal 
shall,  within  such  time  (not  less  than  twenty  days)  as  shall 
be  limited  by  tlie  court,  give  and  file  in  the  office  of  the 
clerk  of  the  court  from  which  the  appeal  is  prayed,  bonds 
in  a  reasonable  amount  to  secure  the  adverse  party,  to  be 
fixed  by  the  court,  with  sufficient  security,  to  be  approved 
by  the  court.  If  the  appeal  is  from  a  judgment  or  decree 
for  the  recovery  of  money,  the  condition  of  the  bond  shall 
be  for  the  prosecution  of  such  appeal  and  the  payment  of 
the  judgment,  interest,  damages  and  costs  in  case  the  judg- 
ment is  affirmed.  In  all  other  cases  the  condition  shall  be 
directed  by  the  court  with  reference  to  the  character  of  the 
judgment,  order  or  decree  appealed  from.  The  obligee  in 
such  bond  may  at  any  time,  on  the  breach  of  the  condi- 
tions thereof,  have  and  maintain  an  action  at  law  as  on 
other  bonds."  {k) 

By  section  YO  of  the  Practice  Act,  as  amended  by  the  act 
of  1877,  it  is  provided  that 

"In  all  cases  where  a  judgment  or  decree  shall  be  ren- 
dered in  any  circuit  court,  or  in  the  superior  court  of  Cook 
county,  or  in  any  city  court,  in  any  case  whatever,  either  in 
law  or  in  chancery,  against  two  or  more  persons,  either  one 
of  said  persons  shall  be  permitted  to  remove  such  suit  to  the 
appellate  court,  by  appeal  or  writ  of  error,  and  for  that  pur- 
pose shall  be  permitted  to  use  the  names  of  all  said  persons, 
if  necessary  ;  but  no  costs  shall  be  taxed  against  any  person 
who  shall  not  join  in  said  appeal  or  writ  of  error.  All  such 
cases  shall  be  determined  in  said  appellate  courts  as  other 

{h)    Laws  of  1877,  p.  149;  Rev.  Stat.  (1877)  742. 


SUPREME  AND  APPELLATE  COURTS.  G45 

Agreed  Cases. 

suits  are,  and  in  the  same  manner  as  if  all  the  parties  had 
joined  in  such  appeal  or  writ  of  error."  (i) 

When  the  appeal  is  taken  by  one  of  several  defendants, 
no  party  except  the  appellant  can  be  heard  in  support  of  the 
appeal  or  receive  any  direct  benefit  therefrom.  {J) 

An  appeal  may  be  taken  by  one  party  and  a  writ  of  error 
by  the  other,  in  the  same  cause,  at  the  same  time,  and  on 
the  same  record,  {k) 

SECTION  III. 

AGREED    CASES. 

The  74th  section  of  the  Practice  Act,  as  amended  by  the 
act  of  1877,  provides  as  follows: 

"  The  parties  in  any  suit  or  proceeding  at  law  or  in  chan- 
cery in  any  circuit  court  or  the  superior  court  of  Cook  coun- 
ty, or  in  any  city  court,  may  make  an  agreed  case  containing 
the  points  of  law  at  issue  between  them,  and  file  the  same 
in  such  court ;  and  the  said  agreed  case,  with  the  decision 
thereon,  may  be  certified  to  the  appellate  court  or  supreme 
court  by  the  clerk  of  such  court,  without  certifying  any  fuller 
record  in  the  case ;  and  upon  such  agreed  case  being  so  cer- 
tified and  filed  in  the  appellate  court  or  supreme  court,  the 
appellant  or  jDlaintifi"  in  error  may  assign  errors,  and  the 
case  shall  then  proceed  in  the  same  manner  as  it  might  have 
been  had  a  full  record  been  certified  to  said  appellate  court 
or  supreme  court."  (/) 

When  the  court  has  reason  to  believe  that  a  cause  is  not 
real,  but  a  fictitious  proceeding,  proof  will  be  required  that 
the  action  is  not  feigned,  (jn) 


(/)  Laws  of  1877,  p.  149;  Rev.  Stat.  (1877)  743;  FonvUle  vs.  Sausser,  73 
111.  451;   Walker  vs.  Aht,  83  111.  226;  Clarh  vs.  Marjield,  77  111.  258. 

(j)    Bees  vs.  C%  of  Chicago,  38  111.  832. 

(/.■)    Harding  vs.  Larkin,  41  111.  413. 

(l)     Laws  of  1877,  p.  150;  Rev.  Stat.  (1877)  744. 

(m)  The  People  vs.  Leland,  40  111.  118;  Spraggins  vs.  Houghton,  3  Scam. 
211;  McConnell  vs.  Shields,  1  Scam.  582. 


646  SUPREME  AND  APPELLATE  COURTS. 

Agreed  Cases  —  Questions  of  Law. 

Hules. — Rule  20  of  the  supreme  court,  (w)  and  rule  16  of 
the  appellate  court  iu  each  district  (o),  provide  that 

''No  judgment  will  be  pronounced  in  any  agreed  case  placed 
upon  the  records  of  this  court  unless  an  affidavit  shall  be  filed 
setting  forth  that  the  matters  presented  by  the  record  were- 
litigated  in  good  faith  about  a  matter  in  actual  controversy^ 
between  the  parties,  and  that  the  oj)inion  of  this  court  is  not 
sought  with  any  other  design  than  to  adjudicate  and  settle- 
the  law  relative  to  the  matter  in  actual  controversy  between; 
the  parties  to  the  record." 

In  the  second  district  of  the  appellate  court  an  affidavit  is^ 
not  necessary  if  not  required  by  the  court.  {jS) 

The  supreme  court  and  appellate  courts  will  not  take  juris- 
diction of  an  agreed  case  unless  there  has  been  a  final  judg- 
ment rendered  in  the  court  below,  {q) 

Judge  may  certify  questio7is  of  law. — Section  Y5  of  the 
Practice  Act,  as  amended  by  the  act  of  1877,  provides  that 

"Any  judge  of  the  circuit  court  or  the  superior  court  of* 
Cook  county,  or  of  any  city  court,  may,  if  the  parties  liti- 
gant assent  thereto,  certify  any  question  or  questions  of  law" 
arising  in  any  case  tried  and  finally  determined  before  hiirt 
to  the  appellate  or  supreme  court,  together  with  his  decision 
thereon ;  or  the  parties  in  the  case  may  agree  as  to  the  ques- 
tions or  points  of  law  arising  in  the  case,  and  the  same  may 
be  certified  by  the  counsel  or  attorneys  of  the  respective- 
parties,  who  shall  sign  their  names  thereto  ;  and  upon  sucbf 
certificate  being  made  the  same  shall  be  filed  in  the  court 
rendering  the  decision,  and  a  copy  of  such  certificate,  certi- 
fied by  the  clerk  of  said  court,  with  the  decision  thereon  and 
final  decision  in  the  case,  to  the  appellate  court  or  supreme- 
court,  and  filed  therein ;  and  upon  filing  the  same  the  like- 
proceedings  may  be  had  in  the  appellate  court  or  supreme; 


in)  55  111.  23;  Puterbaugh's  Com.  Law  PI.  and  Pr.  9. 

(o)  1  Bradwell's  App.  Ct.  R.  22, 33,  46,  57. 

{p)  See  Rule  16,  1  Bradwell's  App.  Ct.  R.  33. 

(?)  Crull  vs.  Keener,  17  111.  246. 


SUPKEME  AND  APPELLATE  COURTS.  647 

, ■ — _ — __^ — * 

Writ  of  Error  —  Supersedeas. 

court  as  if  a  full  and  complete  record  had  been  transcribed 
and  certified  to  said  court."  (r) 

Tlie  statute  in  relation  to  agreed  cases,  and  certifying  ques- 
tions of  law,  do  not  apply  in  cases  in  wliicli  the  title  to  real 
estate  is  in  question,  nor  to  cases  where  any  question  of  fact 
appertaining  to  the  constitutional  enactments  of  a  law  of  this 
state  is  involved,  {s) 

SECTION  IV. 

WEIT    OF    ERROR SUPERSEDEAS. 

\Vrit  of  error. — A  writ  of  error  is  a  writ  of  right,  and  may 
be  prosecuted  in  all  cases,  unless  prohibited  by  some  statute 
or  inflexible  rule  of  law.  {() 

If  a  successful  party  is  dissatisfied  with  a  judgment  ren- 
dered in  his  own  favor,  he  may  prosecute  a  writ  of  error  for 
its  reversal,  but  he  cannot  appeal.  {%i) 

Where  a  judgment  is  rendered  against  two  or  more  per- 
sons, either  may  sue  out  a  writ  of  error,  and  for  that  purpose 
may  use  the  names  of  all  said  parties  if  necessary,  but  no 
costs  shall  be  taxed  against  any  other  person  who  shall  not 
join  in  suing  out  the  writ,  iv)  But  such  plaintiflT  in  error 
cannot  allege  errors  which  relate  exclusively  to  a  party  wha 
is  not  complaining,  and  who  is  not  before  the  court.  {\o) 

Limitation. — Section  85  of  the  Practice  Act,  as  amended. 
by  the  act  of  1877,  provides  that 

(?•)    Laws  of  1877,  p.  150;  Rev.  Stat.  (1877)  744. 

(s)    Laws  of  1877,  p.  151;  Rev.  Stat.  (1877)  744. 

(0  McClay  vs.  Norris,  4  Gilm.  370;  Bowers  vs.  Green,  1  Scam.  42;  Hall 
vs.  Thode,  75  lU.  173. 

[u]  Addix  vs.  Fahnestoch,  15  111.  448;  Jones  vs.  Wright,  4  Scam.  338; 
Fuller  vs.  Rohh,  26  111.  246;  see  Teal  vs.  Russell,  2  Scam.  819;  Davidson  vs. 
Bond,  12  111.  84;  Harttnan  vs.  Belleville  dt  0.  F.  R.R.  Co.,  64  111.  24. 

(v)    Rev.  Stat.  (1877)  743. 

(w)  Richards  vs.  Green,  78  111.  525;  Fonrille  vs.  Saiisser,  73  111.  451; 
Walker  vs.  Abt,  83  111.  226;  Clark  vs.  Marfield,  77  111.  258;  Kennedy  vs. 
Kennedy.  66  111.  190;  Havinghorst  vs.  Lindberg,  67  111.  463;  Smith  vs.  Hick- 
man, 68  111.  314. 


648  SUPREME  AND  APPELLATE  COUKTS. 

Writ  of  Errpr  —  Process,  etc. 

"A  writ  of  error  shall  not  be  brought  after  the  expiration 
■of  five  years  from  the  rendition  of  the  decree  or  judgment 
complained  of;  but  when  a  person,  thinking  himself 
aggrieved  by  any  decree  or  judgment  that  may  be  reversed 
in  the  supreme  court  or  the  appellate  court,  shall  be  an 
infant,  non.  compos  mentis,  or  under  duress,  when  the  same 
was  entered,  the  time  of  such  disability  shall  be  excluded 
from  the  computation  of  the  said  five  years."  {x) 

Where  a  writ  of  error  is  sued  out  within  •  five  years,  the 
failure  to  have  the  process  served  within  that  period  will  not 
bar  the  writ.  {ij) 

To  lohom  directed. — Rule  4  of  the  supreme  court,  (2)  and 
of  the  several  appellate  courts,  ia)  in  relation  to  writs  of 
error  to  inferior  courts,  is  as  follows : 

"IV.  Writs  of  error  shall  be  directed  to  the  clerk  or 
keeper  of  the  record  of  the  court  in  which  the  judgment  or 
decree  complained  of  is  entered,  commanding  him  to  certify 
a  correct  transcript  of  the  record  to  this  court ;  but  where  the 
plaintift*  in  ei'ror  shall  file  in  the  office  of  the  clerk  of  this 
court  a  transcript  of  the  record  duly  certified  to  be  full  and 
complete,  before  a  writ  of  error  issues,  it  shall  not  be  neces- 
sary to  send  such  writ  to  the  clerk  of  the  inferior  court,  but 
such  transcript  shall  be  taken  and  considered  as  a  due  return 
to  said  writ." 

Process  on  writs  of  error. — The  process  on  writs  of  error 
is  prescribed  by  the  5th  rule  of  the  supreme  court,  (h)  and 
of  each  of  the  appellate  courts,  (c)  and  is  as  follows : 

"V.  The  process  on  writs  of  error  shall  be  by  scire- 
facias  to  hear  errors,  issued  on  the  application  of  the  plaintiff 
in  error  to  the  clerk,  directed  to  the  sheriff  or  other  officer 

{x)  Laws  of  1877,  p.  153;  Rev.  Stat.  (1877)  745. 

0/)  Burnap  vs.  Wight,  14  111.  303. 

(2)  55  111.  xviii;  Puterbau^h's  Com.  Law  PI.  and  Pr.  vi. 

{a)  1  Bradwell's  App.  Ct.  R.  18.  30,  42,  53. 

(h)  55  111.  xviii;  Pnterbang'h's  Com.  Law  PI.  and  Pr.  vi. 

{c)  1  Bradwell's  App.  Ct.  R.  19,  30,  42,  55. 


SUPREME  AND  APPELLATE  COURTS.  649 

"Writ  of  Error  —  Prascipe  for. 

of  the  proper  county,  coiniiiandiiig  liiiii  to  summon  tlie  de- 
fendant in  error  to  appear  in  court,  and  show  cause,  if  any 
he  liave,  why  the  judgment  or  decree  mentioned  in  the  writ 
of  error  shall  not  be  reversed.  If  the  scire-facias  be  not 
returned  executed,  an  al'i<is  and  j/luric.s  may  issue  without  an 
order  of  court." 

The  party  or  attorney  prosecuting  a  writ  of  error  should 
file  with  the  clerk  of  the  supreme  or  appellate  court,  as  the 
case  may  be.  aj/rcvcijje,  giving  a  full  statement  of  the  names 
of  each  of  the  parties  to  the  judgment  sought  to  be  reversed, 
and  in  whose  favor  the  judgment  was  rendered,  and  then 
directing  the  clerk  to  issue  the  writ  in  favor  of  the  plaintiffs 
in  error,  giving  each  of  their  names  in  full,  and  against  the 
defendants  in  error,  giving  the  name  of  each  in  full,  {d)  The 
prwci/pe  should  also  direct  the  clerk  to  what  county  to  issue 
the  8Gire-facia8  to  hear  errors. 

IS'o.  252.    Pk^cipe  for  a  writ  of  error. 

In  the  Supreme  Court  (or  Appellate  Court)  of  the  State  of 

Illinois. 
Grand  Division, 


(or District) 

To  the Term,  18—. 

CD.,  Plaintiff  in  Error,       |    j.^.^.^^.  ^^  ^^^^ ^^^^^^  ^^  ^^^^ 

A.  B.,  DeWant  in  Error,  j         ^""^"^  ^'^ • 

Judgment  [fxr  decree)  obtained  by  A.  B.  vs.  C.  D.  in 

the court  of  the  county  of ,  at  the 

term,  18 — ,  in  an  action  of ,  for  % and 

costs  of  suit. 

Issue  a  writ  of  error  to  the  clerk  of  the court  in  and 

for  the  county  of ,  returnable  on  the  first  day  of  the  next 

term  of  said court. 

Dated,  etc. 

Attorney  for  Plaintiff  in  Error. 

To  the  Clerk  of  the  Supreme  Court  of  Grand  Division  [or 
Appellate  Court  of District). 

id)    Napi)er  vs.  Short,  17  111.  119. 


650  SUPREME  AND  APPELLATE  COURTS. 

Writ  of  Error  —  Praecipe  for  Scire-Facias. 

If  a  transcrij)t  of  the  record  is  filed  before  a  writ  of  error 
issues,  it  will  not  be  necessary  to  send  such  writ  to  the  infe- 
rior court;  in  such  case  it  will  be  necessary,  however,  to  sue 
out  a  scire-/ aclas  to  hear  errors. 

No.  253.     Pk^ecipe  for  a  scire-facias  to  hear  errors. 

{Insert,  in  lieu  of  the  order  for  writ  of  error  in  the  above  forrriy 

the  folloiuing : ) 

"Issue  a  writ  of  scirefaoias  to  the  said  A.  B.,  defendant 
in  error,  to  hear  errors,  directed  to  the  sheriff  of  the  county 

of ,  to  execute  according  to  law,  returnable  on"  the  first 

day  of  the  next  term  of  said court." 

"Where  no  writ  of  error  has  been  actually  issued,  the  plain- 
tiff has  no  right  to  the  writ  of  scirefaoias  until  the  transcript 
of  the  record  is  filed,  {e) 

Return  day. — Rule  6  of  the  supreme  court  and  appellate 
courts,  respectively,  provides : 

"  YI.  The  first  day  of  each  term  shall  be  return  day  for 
the  return  of  process.  And  no  party  shall  be  compelled  to 
answer,  or  jjrepare  for  hearing,  unless  the  scirefacias  shall 
have  been  served  ten  days  before  the  return  day  thereof;  nor 
shall  a  defendant  be  at  liberty  to  enter  his  appearance  and 
compel  the  plaintiff  to  proceed  with  the  cause,  unless  he  shall 
have  given  the  plaintiff  ten  days'  notice,  before  the  term,  of 
his  intention  to  enter  his  appearance  and  have  the  case  pro- 
ceed to  a  hearing."  {f) 

ilule  7  of  the  same  courts  provides  that: 

"  YII,  Whenever  a  writ  of  error  is  made  a  supersedeas^ 
the  plaintiff  in  error  shall,  on  filing  the  record  with  the  clerk, 
at  the  same  time  order  and  direct  a  scirefacias  to  issue  to 
hear  errors,  and  shall  use  reasonable  diligence  to  have  the 
same  served  ten  days  before  the  first  day  of  the  term  ta 
which  the  writ  of  error  is  made  returnable ;  on  failing  to  da 

(e)       Breaton  vs.  Johnson,  1  Bradwell's  App.  Ct.  R.  160. 
(/)    55  111.  xviii;  1  Bradwell's  App.  Ct.  R.  19,  31,  43,  54. 


SUPEEME  AND  APPELLATE  COURTS.  651 

Writ  of  Error  —  Notice  to  Non- Residents. 

SO,  the  defendant  in  error  shall  have  the  right  to  a  hearing- 
at  the  said  term,  after  joining  in  error,  without  giving  ten 
days'  notice,  as  required  by  rule  6 :  Provided,  if  there  be 
not  ten  days  between  the  allowance  of  the  sti2}e7'sedeas  and 
the  sitting  of  the  court,  the  cause  shall  stand  continued  until 
the  next  term,  unless  by  consent  of  parties  it  shall  be  other- 
wise ordered."  {g) 

Notice  to  non-resident  defendants,  etc. — Rule  8  of  the  su- 
preme court,  in  relation  to  publication  of  notice  to  defend- 
ants in  error  who  are  non-residents,  or  have  gone  out  of  the 
state,  or  cannot  be  found,  has,  since  July  1,  1872,  been  super- 
seded by  the  86th  section  of  the  Practice  Act,  which  is  as  fol- 
lows : 

"When  any  plaintiff  in  error  shall  file  in  the  office  of  the 
clerk  of  the  supreme  court,  or  appellate  court,  as  the  case 
may  be,  an  affidavit  showing  that  any  defendant  resides  or 
has  gone  out  of  this  state,  or  on  due  inquiry  cannot  be  found, 
or  is  concealed  within  this  state  so  that  process  cannot  be 
served  upon  him,  and  stating  the  place  of  residence  of  such 
defendant,  if  known,  and  also  the  place  of  residence  of  the 
attorney  who  appeared  in  the  case  in  the  court  to  which  the 
writ  of  error  is  directed  ;  or  that  upon  diligent  inquiry  their 
place  of  residence  cannot  be  ascertained,  the  clerk  of  the 
supreme  court,  or  appellate  court,  as  the  case  may  be,  wherein 
the  cause  shall  be  pending,  shall  cause  publication  to  be 
made  in  some  newspaper  published  in  the  county  in  which 
the  cause  was  originally  instituted  ;  but  if  no  newspaper  shall 
be  published  in  such  county,  then  such  notice  shall  be  pub- 
lished in  a  newspaper  published  nearest  to  said  county,  con- 
taining notice  of  the  pendency  of  such  suit,  the  names  of  the 
parties  thereto,  the  title  of  the  court,  and  the  time  and  place 
of  the  return  of  the  summons  in  the  case ;  and  he  shall  also, 
within  ten  (10)  days  of  the  first  publication  of  such  notice, 
send  a  copy  thereof  by  mail,  addressed  to  such  defendant 

ig)  55  111.  xix;  Puterbaugh's  Com.  Law  PI.  and  Pr.  vi;  1  Bradwell's  App. 
Ct.  R.  19,  31,  43,  54;  see  GMs  vs.  Blackwell,  40  111.  51. 


652  SUPREME  AND  APPELLATE  COURTS. 

Writ  of  Error  —  Supersedeas. 

and  the  attorney,  whose  place  of  residence  are  (is)  state'd  in 
such  affidavit.  The  certificate  of  the  clerk,  that  he  has  sent 
such  notice  in  pursuance  of  this  section,  shall  be  evidence. 
Such  notice  shall  be  published  for  four  consecutive  weeks, 
the  first  insertion  of  which  said  notice  shall  be  at  least  forty 
days  before  the  first  day  of  the  term  to  which  said  writ  is 
made  returnable ;  and  unless  said  time  has  intervened,  no 
proceedings  therein  shall  be  had  at  said  term,  but  the  said 
cause  shall  stand  continued  to  the  next  term  of  the  court: 
Pi'omded^  that  in  case  both  parties  appear  and  consent  to 
the  hearing,  the  said  cause  shall  then  be  heard."  (/<) 

Notice  to  purchasers  and  terre-tenants. —  Rule  9  of  the 
supreme  court  {i)  and  rule  8  of  the  several  appellate  courts  {j) 
provide  that 

"In  all  cases  wherein  guardians,  executors  or  adminis- 
trators, or  others  acting  in  a  fiduciary  character,  having 
obtained  an  order  or  decree  for  the  sale  of  lands  in  causes 
ex-jyarte^  and  a  sale  has  been  had  under  such  decree  or  order, 
and  the  same  shall  be  brought  to  this  court  for  revision,  the 
purchaser  or  terre-tenants  of  such  lands,  if  known,  shall  be 
suggested  to  the  court  by  affidavit  of  the  plaintifi^  in  error, 
and  notice  given  them  of  the  pendency  of  the  writ  of  error 
ten  days  before  the  first  day  of  the  term  of  the  court  to  which 
the  writ  of  error  is  returnable,  so  that  said  terre-tenants  may 
appear  and  defend." 

Supersedeas. — The  supreme  court  (/■)  and  the  appellate 
courts  respectively  (/)  may  issue  writs  of  supersedeas.  Such 
writs  shall  run  in  the  name  of  the  People  of  the  State  of 
Illinois,  and  bear  teste  in  the  name  of  the  chief  justice  or 
presiding  justice  of  the  court  from  which  it  issues,  be  signed 

[h)  Laws  of  1877,  p.  152;  Rev.  Stat.  (1877)  745;  see  Cameron  \s.Sc(vage, 
40  111.  124. 

(0     55  111.  XX;  Puterbaugli's  Com.  Law  PL  and  Pr.  vii. 
(i)    1  Bradwell's  App.  Ct.  R.  20,  31,  43,  54. 
(A-)    Rev.  Stat.  (1877J  321. 
(l)     lb.  324. 


SUPEEME  AND  APPELLATE  COURTS.  653 

Writ  of  Error  —  Supersedeas — When  Granted,  etc. 

by  the  clerk,  dated  wlien  issued,  sealed  with  the  seal  of  the 
court,  and  made  returnable  according  to  law. 

To  have  a  writ  of  error  made  a  supersedeas  is  not  a  consti- 
tutional right,  hence  the  legislature  may  impose  terms  upon 
which  it  shall  be  granted,  (vi) 

Section  77  of  the  Practice  Act,  as  amended  by  the  act  of 
1877,  provides  that 

''!No  writ  of  error  shall  operate  as  a  supersedeas  unless 
the  supreme  court  or  appellate  court,  as  the  case  may 
be,  or  some  judge  thereof  in  vacation,  after  inspecting  a 
copy  of  the  record,  shall  order  the  same  to  be  made  a  super- 
sedeas, nor  until  the  party  procuring  such  writ  shall  file  a 
bond  in  the  manner  and  with  the  conditions  required  in  case 
of  appeal,  when  the  clerk  issuing  such  writ  shall  indorse 
thereon  that  it  shall  be  a  supersedeas,  and  operate  according- 
ly ;  and  the  parties  in  writs  of  error  shall  be  subject  to  the 
same  judgment  and  mode  of  execution  as  is  provided  in  case 
of  appeal."  [o) 

When  granted — Application  for. — Rules  1,  2  and  3  of  the 
supreme  court  {pi)  and  of  the  appellate  courts  respectively,  {q) 
in  relation  to  supersedeas,  are  as  follows : 

"I.  No  supersedeas  will  be  granted  unless  a  transcript  of 
the  record  on  which  the  application  is  made  be  complete, 
and  so  certified  by  the  clerk  of  the  court  below,  and  the 
requisite  bond  be  entered  into  and  filed  in  the  ofiice  of  the 
clerk  of  this  court,  according  to  law,  with  an  assignment  of 
errors  written  on  or  appended  to  the  record.  And  on  every 
application  for  a  snjiersedeas  an  abstract  of  the  record,  with  a 
brief  containing  the  points  and  authorities  relied  upon,  and 
pointing  specifically  to  those  portions  of  the  record  upon 
which  the  alleged  errors  arise,  with  the  record,  shall  be  pre- 
sented to  the  court  or  judge  to  whom  the  application  is  made. 

(w)  Brijant  vs.  The  People,  71  111.  32. 

(o)  Laws  of  1877,  p.  151;  Rev.  Stat.  (1877)  744. 

(jo)  55  111.  xvii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  v. 

(g)  1  Bradwell's  App.  Ct.  R.  17,  27,  41,  52. 


654  SUPREME  AND  APPELLATE  COURTS. 

Writ  of  Error — Supersedeas. 

Every  such  application,  whether  made  in  open  court  or  to  a 
justice  in  vacation,  must  be  accompanied  by  an  affidavit  of 
the  proposed  securities,  or  some  other  credible  person,  justi- 
fying the  sufficiency  of  bail,  sworn  to  and  properly  certified. 

"  II.  Whenever  a  bond  is  executed  by  an  attorney  in  fact 
the  clerk  shall  require  the  original  power  of  attorney  to  be 
filed  in  his  office,  unless  it  shall  appear  that  the  power  of 
attorney  contains  other  powers  than  the  mere  power  to  exe- 
cute the  bond  in  question,  in  which  case  the  original  power 
of  attorney  shall  be  presented  to  the  clerk,  and  a  true  copy 
thereof  filed,  certified  by  the  clerk  to  be  a  true  copy  of  the 
original. 

"III.  When  a  writ  of  error  shall  be  made  a  supersedeas 
the  clerk  shall  indorse  upon  said  writ  the  following  words : 
'  This  writ  of  error  is  made  a  swpersedeas^  and  is  to  be  obeyed 
accordingly,'  and  he  shall  thereupon  file  the  writ  of  error, 
with  the  transcript  of  the  record,  in  his  office.  Said  tran- 
script shall  be  taken  and  considered  as  a  due  return  to  said 
writ,  and  thereupon  it  shall  be  the  duty  of  the  clerk  to  issue 
a  certificate,  in  substance  as  follows,  to  wit : 

"State  of  Illinois,  ss. 

"  Office  of  -the  Clerk  of  the  Supreme  Court, 
{ox  Appellate  Court  of  the District.) 

"  I  do  hereby  certify  that  a  writ  of  error  has  issued  from 

this  court  for  the  reversal  of  a  judgment  obtained  by vs. 

,  in  the Court  of ,  at  the term,  A.D.  18 — , 

in  a  certain  action  of ,  which  writ  of  error  is  made  a 

supersedenfi.,  and  is  to  operate  as  a  suspension  of  the  execution 
of  the  judgment,  and  as  such  is  to  be  obeyed  by  all  con- 
cerned. 

"  Given  under  my  hand  and  the  seal  of  the  Supreme  Court 

(or  Appellate  Court  of  the  District),  at ,  this 

day  of ,  A.D.  18—.  ,  Cler'k.'' 

A  supersedeas  will  not  be  granted  on  the  application  of  a 
plaintifi"  in  error  who  seeks  the  reversal  of  a  judgment  in  his 
own^favor.  (r) 

(r)    Carr  vs.  Miner,  40  111.  33;  see  Addix  vs.  Fahnestock,  15  111.  448. 


SUPEEME  AND  APPELLATE  COURTS.  655 

Writ  of  Error  —  Supersedeas  —  Costs. 

It  will  be  granted  when  it  appears,  upon  inspection  of  the 
record,  that  there  is  probable  cause  for  reversing  the  judg- 
ment of  the  court  below,  {s) 

An  application  for  a  supersedeas  made  in  open  court  in 
the  grand  division  or  appellate  district  in  which  the  writ  of 
error  must  be  sued  out,  will  not  be  entertained  unless  the 
record  has  been  filed  and  the  cause  docketed.  In  vacation 
the  application  may  be  made  to  one  of  the  justices  without 
.  having  first  filed  the  record,  (i^) 

The  transcript  of  the  record  on  which  the  application  is 
made  must  be  complete,  and  so  certified  by  the  clerk  of  the 
court  below,  or  a  writ  of  supersedeas  will  not  be  allowed, 
and  if  granted  will  be  quashed.  (?i)  And  errors  must  be 
assigned.  If  the  court  should  inadvertently  award  a  snper- 
sedeas  without  an  assignment  of  errors  on  the  record,  it 
will,  upon  its  attention  being  called  to  the  omission,  require 
them  to  be  assigned  at  once,  and  in  default  thereof,  will  dis- 
miss the  cause,  (y) 

Effect  of  supersedeas. — An  order  allowing  a  supersedeas 
does  not  operate  as  a  suspension  of  the  judgment  until  the 
Dond  is  filed  and  a  writ  of  error  is  issued.  (?/j") 

The  granting  of  a  supersedeas  will  not  have  the  effect  to 
prevent  the  clerk  of  the  court  below  from  issuing  his  fee 
bills  to  collect  the  costs  in  the  cause,  occasioned  by  the  par- 
ties respectively ;  it  would  only  restrain  the  successful  party 
from  proceeding  under  his  own  judgment.  (») 

Security  for  costs. — A  writ  of  error  is  considered  a  new 
action;  and  the  statute  requiring  non-resident  plaintiff's,  etc., 

(s)    Loivry  vs.  Bryant,  2  Scam.  2. 

{t)    Anonymous,  40  111.  115. 

(m)  Thompson  vs.  County  Comrs.,  3  Scam.  66;  Frink  vs.  Phelps,  4  Scam. 
558. 

[v)    Gibhs  vs.  BlackweU,  40  111.  51. 

(w)  Blackberry  vs.  The  People,  5  Gilm.  266;  see  Ambrose  vs.  Weed,  11 
ni.  488. 

{x)    Carr  vs.  Minor,  40  111.  33;  Perteet  vs.  The  People,  70  111.  171. 


656  SUPREME  AND  APPELLATE  COURTS. 

Appeals  —  Filing  of  Record. 

to  file  a  bond  for  costs  before  commencing  suits  applies  in 
the  case  of  a  writ  of  error,  {s)  And  where  it  is  made  to 
appear  that  the  plaintiff  in  error  has  no  property  out  of  which 
the  costs  of  the  suit  can  be  collected,  (a)  or  where  a  writ  of 
error  has  been  sued  out  by  an  administrator,  or  a  person  act- 
ing in  a  fiduciary  capacity,  and  it  is  shown  that  the  estate  he 
represents  is  utterly  insolvent,  (h)  security  for  costs  will  be 
required. 

Rule  25  of  the  supreme  court  (f),  and  rule  20  of  the  first 
and  21  of  the  third  and  fourth  districts  of  the  appellate 
court  (d),  provide  that 

"Upon  filing  an  affidavit  that  any  plaintiff"  in  error  is  not 
a  resident  of  this  state,  and  that  no  bond  for  costs  has  been 
filed,  a  rule  shall  be  entered  against  him,  of  which  he  shall 
take  notice,  to  show  cause  why  the  writ  shall  not  be  dis- 
missed." 

The  motion  for  security  for  costs  must  be  made  at  the 
earliest  proceedings  in  the  case,  and  before  any  pleadings  in 
the  case.    It  comes  too  late  after  a  plea  of  release  of  errors. ((?) 

SECTION  V. 

APPEALS. 

We  have  already  seen  in  what  cases  and  from  what  courts 
appeals  will  lie  to  the  supreme  or  appellate  courts.  (/") 

Whe7i  record  to  he  filed  in  appeal  cases. —  Section  72  of  the 
Practice  Act,  as  amended  by  the  act  of  1879,  provides  that 

{z)  Roberts  vs.  Trustees  etc.,  32  111.  474;  Ripley  vs.  Morris,  2  Gilm. 
382;  Hickman  vs.  Haines,  5  Gilm.  20. 

(a)    Parr  vs.  Van  Home,  40  111.  122. 

(6)    Phelps  vs.  Funkhouser,  40  111.  27.  t 

(c)    55  111.  xxiv;  Puterbaugh's  Com.  Law  PI.  and  Pr.  x. 

{d)    1  Bradwell's  App.  Ct.  R.  23,  46,  57. 

[e)  Ruckman  vs.  Allwood,  40  111,  128;  also  see  Puterbaugh's  Com.  Law 
PI.  and  Pr.  41,  42. 

(/)    Ante,  pp.  638-641. 


SUPREME  AND  APPELLATE  COURTS.  657 

Appeals  —  Dismissal  of,  etc. 

"Authenticated  copies  of  the  records  of  judgments,  orders 
and  decrees  appealed  from,  shall  be  filed  in  the  office  of  the 
clerk  of  the  supreme  court,  or  of  the  appellate  court,  as  the 
case  may  be,  on  or  before  the  second  day  of  the  succeeding 
term  of  said  courts :  Provided,  twenty  (20)  days  shall  have 
intervened  between  the  last  day  of  the  term  at  which  the 
judgment,  order  or  decree  appealed  from  shall  have  been 
entered  and  the  sitting  of  the  court  to  which  the  appeal 
shall  be  taken;  but  if  ten  (10)  days,  and  not  twenty  (20),. 
shall  have  intervened  as  aforesaid,  then  the  record  shall  be- 
filed  as  aforesaid  on  or  before  the  tenth  (10th)  day  of  said 
succeeding  term,  otherwise  the  said  appeal  shall  be  dismissed 
unless  further  time  to  file  the  same  shall  have  been  granted 
by  the  court  to  which  said  appeal  shall  have  been  taken, 
upon  good  cause  shown."  {g) 

Prior  to  this  amendment,  the  time  within  which  the  record 
was  required  to  be  filed  was  computed  from  the  date  of  the 
judgment,  instead  of  the  last  day  of  the  term,  ih) 

An  application  for  further  time  within  which  to  file  a  tran- 
script of  the  record  in  appeal  cases  must  be  made  to  the  court 
within  the  time  prescribed  by  law  for  the  filing  of  such  tran- 
script. (^) 

A  motion  for  an  extension  of  time  to  file  a  transcript  of 
the  record  must  be  in  writing  and  be  supported  by  an  affida- 
vit.  {j) 

Dismissal  of  appeal — damages. —  Section  73  of  the  Prac- 
tice Act,  as  amended  by  the  act  of  1877,  provides  that 
"When  appeals  from  judgments,  orders  or  decrees  for  the 
recovery  of  money  are  dismissed  by  the  supreme  or  appel- 
late court  for  want  of  prosecution  or  for  failing  to  file  authen- 
ticated copies  of  records  as  required  by  law,  the  court  shall 


{g)    Laws  of  1879,  p.  221;  BradweU's  ed.  170. 

Qi)    Rev.  Stat.  (1877)  743;  T.  P.  d-  W.  R.  W.  Co.  vs.  Comes,  40  HI.  37. 
(0     Adams  vs.  Robertson,  40  III.  40;  Ragar  vs.  Tilford,  Breese,  app.,  21 
(Beecher's  ed.  407);  Frink  vs.  Phelps,  4  Scam.  581. 
ij)     Webster  vs.  Pierce,  40  111.  39. 


658  SUPREME  AND  APPELLATE  COURTS. 

Appeals  —  Effect  of,  etc. 

enter  judgment  against  the  appellants  for  not  less  than  five 
(5)  nor  more  than  ten  (10)  per  cent  damages  on  the  amount 
recovered  in  the  inferior  court,  for  the  collection  of  which 
the  appellee  shall  be  entitled  to  execution  as  on  other  judg- 
ments." {k) 

Rule  37  of  the  supreme  court  (I)  and  rules  30  of  the  first, 
31  of  the  second,  34  of  the  third  and  32  of  the  fourth  dis- 
trict of  the  appellate  court,  (m)  provide  that 

"  When  appeals  from  decrees,  judgments  or  orders  for  the 
recovery  of  money  are  dismissed  by  this  court  for  want  of 
prosecution  or  for  failing  to  file  authenticated  copies  of  records 
as  required  by  law,  the  court  will  award  damages  against  the 
appellant  at  ten  per  cent  upon  the  amount  recovered  in  the 
court  below,  if  it  be  less  than  one  hundred  dollars,  and  at 
five  per  cent  upon  the  amount  of  such  recovery  if  it  equals 
or  exceeds  that  sum." 

"Where  the  record  fails  to  show  any  such  judgment  as  the 
appeal  professes  to  be  taken  from,  the  appeal  will  be  dis- 
missed, {n) 

]Vo  dismissal  for  want  of  sufficient  bond. —  Section  69  of 
the  Practice  Act  provides  that 

"No  appeal  to  the  supreme  or  appellate  court  shall  be 
dismissed  by  reason  of  any  informality  or  insufficiency  of 
the  appeal  bond,  if  the  party  taking  such  appeal  shall,  with- 
in a  reasonable  time  to  be  fixed  by  the  court,  file  a  good 
and  sufficient  bond  in  such  case,  to  be  approved  by  the  said 
court."  (p) 

Effect  of  an  appeal. — The  perfection  of  an  appeal  in  an 

{k)  Laws  of  1877,  p.  150;  Rev.  Stat.  (1877)  743;  see  Colby  vs.  Small,  40 
111.42. 

{I)      55  111.  xxvi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xii. 

(w)    1  Bradwell's  App.  Ct.  R.  26,  37,  49,  60. 

(n)    Armstrong  vs.  The  People,  74  111.  178. 

(o)  Rev.  Stat.  (1877)  743;  Willeriborg  vs.  Murphy,  40  lU.  46;  Propeller 
Niagara  vs.  Martin,  42  111,  106. 


SUPREME  AND  APPELLATE  COURTS.  659 

Records  of  Inferior  Courts. 

inferior    court   suspends   all   proceedings   under   the  judg- 
ment. {])) 

Upon  what  a  motion  to  dismiss  appeal  may  he  based. — The 
usual  and  correct  practice  on  a  motion  to  dismiss  an  appeal 
is,  to  base  the  motion  upon  a  certified  copy  of  the  record  of 
the  judgment  of  the  court  appealed  from,  or  a  certificate  of 
the  clerk  that  an  appeal  had  been  allowed  and  perfected, 
whereby  the  judgment  of  the  inferior  court  had  been  sus- 
pended, {q) 

SECTION  VI. 

RECORDS  OF  INFERIOR  COURTS. 

How  prepared. — Kules  10  and  11  of  the  supreme  court,  (r) 
and  rules  9  and  10  of  the  appellate  court  of  the  first,  third 
and  fourth  districts,  {s)  are  as  follows  : 

10  (9).  "Hereafter  the  clerks  of  the  inferior  courts  of 
this  state,  in  cases  of  appeal  and  of  error  or  certiorari,  in 
making  up  "  an  authenticated  copy  of  the  record  of  the  judg- 
ment appealed  from,"  or  in  sending  up  a  transcript  of  the 
record  to  this  court  as  a  return  to  a  writ  of  error  or  certio- 
rari, shall  certify  to  this  court :  -first,  a  copy  of  the  process ; 
second,  the  pleadings  of  the  parties,  respectively  ;  third,  the 
verdict  in  jury  trials  ;  fourth,  the  judgment  of  the  court  be- 
low whether  tried  by  the  court  or  jury ;  fifth,  all  orders  in 
the  same  cause  made  by  the  court ;  sixth,  the  bill  of  excep- 
tions ;  and  seventh,  the  appeal  bond  in  cases  of  appeal. 
And  in  no  case  shall  the  said  clerk  insert  in  such  transcript 
any  affidavit,  account,  or  other  document  or  writing,  or  other 
matter,  which  according  to  the  decisions  of  this  (supreme 
court)  court,  have  been  held  to  constitute  no  part  of  the 

{p)  Ambrose  vs.Weed,  11  111.  488;  see  BlacJcberrt/  vs.  The  People,  5  Gilm. 
66. 

(g)  The  People  vs.  Public  Officers,  4  Gilm.  149. 

(r)  55  111.  XX;  Puterbaugh's  Com.  Law  PI.  and  Pr.  vii. 

(s)  1  Bradwell's  App.  Ct.  R.  20,  44,  55. 


660  SUPEEME  AND  APPELLATE  COURTS. 

Records  of  Inferior  Courts,  etc, 

record  of  a  cause.  (*)  This  rule  shall  not  extend  to  appeals 
or  writs  of  error  in  chancery  or  criminal  causes." 

The  ninth  rule  of  the  appellate  court  of  the  second  district 
is  the  same  as  the  above  to  the  asterisk  (*),  with  the  follow- 
ing addition  after  the  asterisk  (*)  : 

"The  transcript  of  the  record  in  chancery  causes  shall 
contain,  unless  unnecessary  to  copy  all,  a  copy  of  the  pro- 
cess or  of  the  notice,  and  proof  of  publication  and  of  mail- 
ing or  excuse  for  not  mailing,  the  pleadings,  the  decree,  and 
other  record  entries,  the  evidence  as  contained  in  the  certifi- 
cate of  evidence,  the  appeal  bond,  and  such  other  matters 
only,  if  any,  as  may  be  necessary  to  properly  present  in  this 
court  the  matters  in  controversy."  {t) 

Rule  11,  supreme  court,  and  rule  10  of  all  the  appellate 
courts : 

"The  clerk  of  the  court  below  shall  arrange  the  several 
parts  of  the  record  aforesaid  according  to  their  chronological 
order.  The  clerk  of  this  court  shall  not  tax  as  costs  in  this 
court  any  matter,  inserted  in  such  transcript  contrary  to  the 
rule." 

Placita,  or  convening  order. — If  the  transcript  of  the 
record  contains  no  placita  or  convening  order  of  the  court, 
it  will  be  a  ground  of  reversal.  {\i)  But  it  may  be  cured  by 
its  appearance  in  an  additional  record  filed  in  the  case,  {v) 
It  should  show  that  the  judge,  clerk  and  sheriff  were  pres- 
ent, {w)    But  it  cannot  be  aided  by  the  bill  of  exceptions,  {x) 

What  is  not  jpart  of  the  record. — Affidavits  in  support  of  a 


{i)     1  Bradwell's  App.  Ct.  R.  31. 

{xi)  Planing  Mill  Lumber  Co.  vs.  CiUj  of  Chicago,  56  111.  304;  Rich  vs. 
Citi/  of  Chicago,  5Q  111.  286;  Lawrence  vs.  Fast,  20  111.  338;  Dukes  vs.  Row- 
lei/,  24  111.  210;  Keller  vs.  Brickley,  63  111.  496. 

{v)    Dunham  vs.  City  of  Chicago,  55  111.  357;  Truit  vs.  Griffin,  61  111.  26. 

\w)   Dukes  vs.  Rotvley,  24  111.  220. 

{x)   Planing  Mill  Lumber  Co.  vs.  City  of  Chicago,  56  111.  304. 


SUPKEME  AND  APPELLATE  COURTS.  661 

Records  of  Inferior  Courts  —  Praecipe  for. 

petition  for  change  of  venue,  {y)  affidavits  and  motions  of 
any  kind,  {z)  reasons  in  writing  for  a  new  trial,  {a)  sworn 
answers  of  parties  to  an  attachment  for  contempt,  (Z*)  a  copy 
of  instrument  indorsed  on  declaration,  (c)  affidavits  in  aid  of 
motion  to  set  aside  default,  {d)  the  minutes  of  the  judge,  {e) 
affidavits  for  continuance,  {f)  the  evidence  on  the  trial,  and 
instructions  of  the  court,  are  no  part  of  the  record,  unless 
preserved  by  a  bill  of  exceptions. 

The  appellate  courts  will  not  consider  any  question  arising 
upon  a  record  without  it  is  full,  or  presents  all  parts  or  mat- 
ters material  to  the  questions  submitted.  If  the  transcript 
is  not  certified  to  be  a  full  copy  of  the  recoj'd^  but  merely  of 
certain  papers  and  proceedings,  the  court  will  not  reverse,  {(f) 

PrcBcipe  for  record. — Rule  12  of  the  supreme  court,  {h) 
and  rule  11  of  the  appellate  courts  respectively,  (?)  provide 
that 

"The  party  or  his  attorney  may,  by  j9rflpc^^<?,  indicate  to 
the  clerk,  and  direct  what  of  the  files  of  the  cause  shall  be 
copied  into  the  record ;  and  in  such  case,  if  the  record  shall 
be  insufficient,  it  shall  be  supplied  at  his  costs,  and  if  un- 
necessarily voluminous,  he  shall  pay  the  costs  accrued  on 
account  of  the  copying  of  such  unnecessary  matters." 

(</)    Schlump  vs.  Beidersdorf,  28  111.  68. 

(z)  Lucas  vs.  Farrington,  21  111.31;  McDonald  vs.  Arnoitt,  14  111.  58; 
Murphey  vs.  The  People,  37  111.  447;  McKmdlet/  vs.  Buck,  43  111.  488;  Cun- 
ningham vs.  Craig,  53  111.  252;  Hat/  vs.  Hayes,  56  111.  342;  Snell  vs.  Church 
Trustees,  58  111.  292;  Thompsonws.  White,  64111.  314;  Van  Pelt  ys.  Dumford, 
58  111.  145. 

(a)    Boyle  vs.  Levings,  28  111.  314;  Nason  vs.  Letz,  73  III.  371. 

(6)     Commissio7iers  etc.  vs.  The  People,  31  111.  97. 

[c)  Franey  vs.  True,  26  111.  184. 

[d)  Horn  vs.  Neu,  63  111.  539. 

[e)  Suttler  vs.  The  People,  59  111.  68. 
(/)    Pick  vs.  Ketchum.  73  111.  366. 
(a)    Bertrand  vs.  Taylor,  87  111.  235. 

(h)    55  111.  xxi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  viii 
(0     1  Bradwell's  App.  Ct.  R.  21,  32,  44,  55. 


662  SUPREME  AND  APPELLATE  COURTS. 

Records  of  Inferior  Courts  —  Praecipe  for. 

No.  254.     Pk^cipe  for  record  in  inferior  court,  in  common 

law  cases. 

In  the Circuit  Court, 

A   B  )  ^  Term,  18 

vs.     y  In  an  action  of 

C   D  ) 

The  clerk  of  said  court  will  make  up  an  authenticated  copy 
of  the  record  in  the  above  entitled  cause,  and  will  insert : 

1.  A  copy  of  the  process  ; 

2.  The  pleadings  of  the  parties  respectively ; 

3.  The  verdict  of  the  jury. 

4.  The  judgment  of  the  court ; 

5.  All  orders  in  the  cause  made  by  the  court ; 

6.  The  bill  of  exceptions ; 

7.  The  appeal  bond  {in  case  of  appeal). 

Attorney  for 

No.  255.     Precipe  for  record  in  inferior  court  in  chancery 

case. 

{Title  of  court  and  cause,  as  in  last  form.) 
The  clerk  of  said  court  will  make  up  an  authenticated 
copy  of  the  record  in  the  above   entitled  cause,   and  will 
insert : 

1.  A  copy  of  the  process  {or  notice  and  proof  of  publica- 
tion and  of  mailing,  or  excuse  for  not  mailing) ; 

2.  The  pleadings  in  the  cause ; 

3.  The  decree,  and  other  record  entries ; 

4.  The  evidence  as  contained  in  the  certificate  of  evidence. 

5.  The  appeal  bond  {in  case  of  appeal), 

{and  direct  such  other  matters,  if  any,  as  may  he  necessary  to 
present  the  matters  in  controversy). 

Solicitor  for 


Enough  of  the  record  should  be  certified  to  enable  the 
court  to  determine  whether  the  errors  complained  of  have 
intervened,  {f) 

A  transcript  of  a  record  in  the  circuit  court,  certified  by 
the  clerk,  under  the  seal  of  the  court,  to  be  a  true  and  full 

0')    Miller  vs.  Whitaker,  33  111.  386. 


SUPREME  AND  APPELLATE  COURTS.  663 


Records  of  Inferior  Courts  —  Additional  Record. 


copy  of  the  proceedings  in  the  cause,  not  shown  by  any  evi- 
dence to  be  otherwise,  must  be  taken  to  be  the  record  in  the 
cause,  and  imports  verity.  Tliey  are  made  uj)  from  the 
entries  of  the  clerks  in  their  minutes  and  order  books,  and 
from  the  files  in  the  cause.  The  clerk  takes  daily  minutes 
of  the  proceedings,  and  generally,  at  their  leisure,  enter  them 
in  the  proper  form  in  the  order  book,  which,  with  the  files, 
are  the  records  in  the  cause,  {k) 

A  bill  of  exceptions  in  a  suit  at  law,  or  a  certificate  of  evi- 
dence in  chancery,  when  properly  filed,  becomes  a  part  of 
the  record.  (/) 

All  proceedings  in  chancery  other  than  oral  evidence  are 
a  part  of  the  record.  The  oral  evidence  must  be  preserved 
by  a  certiHcate  of  evidence,  (m.) 

The  papers  of  a  cause,  when  filed  under  our  statute,  be 
come  a  part  of  the  record,    and  transcripts  are  made  by 
copying  the  tiles,  the  orders  of  the  court,  and  such  papers  as 
are  made  a  part  of  the  record  by  a  bill  of  exceptions  or  cer- 
tificate of  evidence.  (;?) 

Amending  the  transcript — The  supreme  or  appellate  court 
cannot  amend  a  transcript  of  a  I'ecord,  even  by  the  original 
papers,  should  they  be  produced  by  a  party  for  that  pur- 
pose ;  (o)  nor  can  the  transcript  be  withdrawn  from  the  files 
for  the  purpose  of  an  amendment,  [jji) 

Additional  record.— K  party  may  file  an  additional  tran- 
script of  the  record,  under  certain  circumstances,  to  correct 

{k)  SchWmer  vs.  The  People,  33  111.  276;  Garden  Chij  Ins.  Co.  vs.  Stag- 
art,  79  111.  259;  C.  B.  d-  Q.  R.  R.  Co.  vs.  Lee,  68  111.  576. 

(l)     Wallahan  vs.  The  People,  40  111.  102. 

(»i)  Ferris  vs.  McClure,  40  111.  99;  Smith  vs.  Newland,  40  111.  100; 
Mason  vs.  Bair,  33  111.  195;  Waiigh  vs.  Robbins,  33  III.  181;  Eaton  vs. 
Sanders,  43  111.  435;  Bressler  vs.  McCune,  56  111.  475. 

(n)    Stevison  vs.  Ernest,  80  III.  513;  Harding  vs.  Larkin,  41  111.  423. 
(o)    III.  C.  R.  R.  Co.  vs.  Garish,  40  111.  70;   Ballance  vs.  Leonard,  40  111. 
72;  Wilder  vs.  House,  40  111.  93. 

ip)    Rowley  vs.  Hughes,  40  111.  71;  Rimrd  vs.  Walker,  40  111.  120. 


664  SUPREME  AND  APPELLATE  COURTS. 

Records  of  Inferior  Courts  —  Removing,  etc. 

errors  or  omissions  in  the  original  transcript ;  {q)  and  when 
it  is  so  filed  it  becomes  a  part  of  the  record  in  the  case,  and 
will  be  considered  as  such.  (7') 

Amendment  of  record  in  inferior  courts.  — The  supreme  or 
appellate  court  will  not  undertake  to  amend  or  correct  the 
record  of  an  inferior  court.  That  belongs  alone  to  the  court 
where  the  record  was  made  and  the  cause  was  tried,  {s) 

If  a  party  desires  an  amendment  or  correction  of  the 
record  in  a  cause  after  the  term  at  which  the  judgment  was 
rendered  therein,  application  for  that  purpose  must  be  made 
in  open  court,  and  upon  notice  to  the  opposite  j^arty.  if) 

Removing  records  from  office  of  clerTi. — Rule  15  of  the 
supreme  court,  {^i)  and  rule  14  of  the  appellate  courts,  (v) 
respectively  provide  that 

"No  person  shall  remove  from  the  office  of  the  clerk  any 
record  of  this  court  except  on  special  leave  granted  for  that 
purpose.  No  record  shall  be  taken  from  the  files  of  the 
court  except  on  application  therefor  to  the  clerk  or  his 
deputy;  and  it  is  made  the  duty  of  the  clerk  to  report 
promptly  to  the  court  every  violation  of  this  rule.  The 
clerk  shall  be  held  responsible  for  the  safe  keeping  and 
production  of  the  records.  Application  for  leave  to  remove 
records  may  be  considered  at  any  time  in  the  discretion  of 
the  court." 


iq)    Flagler  vs.  Crow,  40  111.  70;   Roivley  vs.  Hughes,  40  111.  71. 

(r)     Goodrich  vs.  Cook,  81  111.  41. 

(s)  Wilder  vs.  House,  40  111.  92;  Gecum  vs.  Dean,  40  111.  92;  Bergan  vs. 
Eiggs,'iO  111.  61;    Underwood  vs.  Hossack,  40  111.  98. 

it)  Wallahan  vs.  The  People,  40  111.  102;  Shepley  vs.  Speyicer,  ^  111. 
105;  Smith  vs.  Trimble,  27  111.  152;  Brooks  vs.  Bruyn,  40  111.  64. 

(m)    55  111.  xxii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  viii. 

(r)    1  Bradwell's  App.  Ct.  R.  21,  33,  45,  56. 


SUPREME  AND  APPELLATE  COURTS.  665 

Docket  —  Docketing  and  Hearing. 


SECTION  VII. 
DOCKET. 

Rules  13  and  14  of  the  supreme  court  {w),  and  rules  12  and 
13  of  the  appellate  courts,  respectively,  (a?)  provide  that 

13.  (12)  ''  No  case  brought  to  this  court  by  appeal  shall  be 
placed  on  the  court  docket  for  hearing  unless  the  record  is 
iiled  within  the  time  now  prescribed  by  law  (y),  or  within 
the  further  time  allowed  by  the  court  for  filing  the  record, 
€xcept  in  extraordinary  cases  the  court,  upon  special  appli- 
cation, may  order  a  cause  to  be  placed  on  the  hearing 
docket. 

14.  (13)  "No  case  which  may  be  brought  to  this  court 
on  writ  of  error  shall  be  placed  on  the  court  docket  for  hear- 
ing, unless  the  record  shall  be  filed  on  or  before  the  second 
day  of  the  term,  or  within  such  further  time  as  may  be 
allowed  by  the  court  for  filing  the  same,  except  in  extraordi- 
nary cases  the  court,  upon  special  application,  may  oi'der  a 
■cause  to  be  placed  upon  the  hearing  docket." 

Docketing  and  hearing.  — Rule  30  of  the  supreme  court,  (s) 
and  rules  25  of  the  first,  and  26  of  the  third  district  of  the 
appellate  court,  {a)  provide  that 

"  Causes  in  which  the  people  are  a  party,  and  in  which 
they  have  a  direct  interest  in  the  decision,  shall  be  placed  at 
the  head  of  the  docket ;  all  other  cases  shall  be  docketed  and 
called  for  argument  in  the  order  in  which  the  records  shall 
have  been  filed  with  the  clerk." 

Advancing  causes  on  the  docket. — Rule  61  of  the  supreme 
court  (b)  provides  as  follows : 

(«')  55  111.  xxi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  viii. 

(x)  1  Bradwell's  App.  Ct.  R.  21,  32,  45,  56. 

(y)  See  ante,  p.  656;  Laws  of  1879,  221;  Bradwell's  ed.  170. 

{z)  55  111.  XXV;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xi. 

(a)  1  Bradwell's  App.  Ct.  R.  24,  48. 

(6)  79  111.  vii;  Puterbaugh's  Com.  Law  PL  and  Pr.  xv. 


666  SUPREME  AND  APPELLATE  COURTS. 

Docket  —  Call  of  Docket. 

Rule  61.  —  '■'■  Ordered^  That  causes  which,  in  the  judgment 
of  the  court,  involve  important  public  interests,  may  be 
advanced  on  the  docket." 

Re-docketi7i(j  causes  not  decided. — The  63d  rule  of  the 
supreme  court,  adopted  at  the  September  term,  18T6,  (c)  is  as 
follows  : 

Rule  63.  —  '''-Ordered.^  That  the  clerks  of  this  court,  in  the 
several  grand  divisions,  are  hereby  directed,  in  preparing 
dockets  of  the  business  of  all  terms  subsequent  to  this,  to 
place  upon  the  same  all  cases  pending  in  their  respective 
divisions,  and  in  which  final  judgment  has  not  been  entered  ; 
and  in  all  such  cases,  where  the  case  shall  have  been  submit- 
ted to  the  court  for  consideration,  the  clerk  shall  note  upon 
the  docket  the  term  at  which  such  case  was  submitted." 

Call  of  docket. — Rule  31  of  the  supreme  court,  (c?)  and  rules 
26  of  the  first,  25  of  the  second,  26  of  the  third  and  26  of 
the  fourth  district  of  the  appellate  court,  {e)  provide 

"That  civil  docket  shall  be  called  numerically,  and  the 
causes  shall  be  argued,  continued,  or  otherwise  disposed  of, 
as  they  are  called,  unless  for  good  cause  shown  they  be 
placed  at  the  foot  of  the  docket;  all  unexpired  rules  will 
terminate  upon  the  call  of  the  cause  for  hearing  :  Provided^ 
That  if  the  court  shall  give  time  to  either  party  without  the 
consent  of  the  other,  the  cause  shall  not  lose  its  precedence 
on  the  docket." 

Call  of  the  docket — Time  for  filing  abstracts  and  hriefs — 
Supreme  Court. — Rule  32  of  the  supreme  court  (/")  pro- 
vides that 

"Hereafter,  in  the  northern  and  central  divisions,  the  call 
of  the  docket  will  commence  with  the  second  week  of  th& 


(c)    79  111.  vii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xv. 
(fZ)    55  111.  XXV;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xi. 
(e)     1  BradwelPs  App.  Ct.  R.  24,  36,  48,  59. 
(/)  55  111.  XXV ;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xi. 


SUPREME  AND  APPELLATE  COURTS.  667 

Docket  —  Time  for  Filing  Abstracts,  etc. 

term,  and  in  the  southern  division  on  the  third  day  of  the 
term,  and  twenty  ctifses  per  day  will  be  subject  to  call.  The 
abstract  and  brief  of  plaintiff  in  error  or  appellant  must  be 
filed  in  the  clerk's  office  one  day  before  the  day  when  a  cause 
stands  subject  to  call,  and  in  the  event  that  either  the  abstract 
or  brief  is  not  filed  within  the  prescribed  time,  the  judgment 
or  decree  of  the  court  below  will,  on  the  call  of  the  docket, 
be  affirmed.  The  defendant  in  error  or  appellee,  in  case  he 
does  not  argue  orally,  can  file  a  brief  within  ten  days  after 
the  time  fixed  for  filing  the  brief  of  plaintiff"  in  error  or  appel- 
lant, and  the  latter  can  have  ten  days  for  a  reply,  at  the 
expiration  of  which  time  the  cause  will  stand  for  decision,  and 
no  further  arguments  will  be  received." 

First  district  of  appellate  court. — Rule  27  of  the  first  dis- 
trict of  the  appellate  court  {g)  provides  that 

"  In  all  cases  where  the  record  shall  have  been  filed  with 
the  clerk  not  less  than  twenty  days  before  the  first  day  of  the 
term,  and  including  all  causes  continued  from  a  former  term, 
the  plaintiff"  in  error  or  appellant  shall  file  with  the  clerk  his 
abstract  and  brief  at  least  five  days  before  the  first  day  of  the 
term  ;  and  in  all  other  cases,  down  to  and  including  number 
fifty  of  the  term  docket,  the  plaintiff"  in  error  or  appellant 
shall  file  his  abstract  and  brief  on  or  before  Monday  of  the 
second  week  of  the  term  ;  and  in  all  cases  from  number  fifty- 
one  to  number  seventy-five  inclusive,  on  or  before  Monday 
of  the  third  week  of  the  term ;  and  in  all  cases  from  num- 
ber seventy-six  to  one  hundred  inclusive,  on  or  before  Mon- 
day of  the  fourth  week  of  the  term  ;  and  in  all  cases  from 
number  one  hundred  and  one  to  and  including  one  hundred 
and  twenty-five,  on  or  before  Monday  of  the  fifth  week  of 
the  term  ;  and  in  all  cases  subsequent  to  number  one  hun- 
dred and  twenty-five,  on  or  before  Monday  of  the  sixth  week 
of  the  term.  In  case  of  the  failure  of  the  plaintiff"  in  error 
or  appellant  to  file  either  his  abstract  or  brief  within  the 
time  above  prescribed,  the  judgment  or  decree  of  the  court 

{g)    1  Bradwell's  App.  Ct.  R.  25. 


668  SUPKEME  AND  APPELLATE  COURTS. 

Docket  —  Time  for  Filing  Abstracts^  etc. 

below  will,  on  the  call  of  the  docket,  be  affirmed.  In  all 
cases  the  appellee  or  defendant  in  error  shall  file  his  brief 
at  least  one  day  before  the  day  the  cause  is  called  for  hear- 
ing." 

Second  distinct  appellate  court— 'Rule  26  of  the  second  dis- 
trict of  the  appellate  court  (A)  provides  that 

"Hereafter  the  call  of  the  docket  will  commence  with  the 
third  day  of  the  term,  and  fifteen  cases  per  day  will  be  sub- 
ject to  call.  The  appellant  or  plaintiff"  in  error  shall  file  his 
abstracts  and  briefs  on  or  before  the  day  fixed  by  law  or  by 
rule  of  this  court  for' filing  the  transcript  of  the  record  of  the 
court  below,  unless,  for  cause  shown,  the  time  shall  be  ex- 
tended. In  the  event  that  either  the  abstract  or  briefs  be  not 
filed  within  the  prescribed  time,  the  judgment  or  decree  of 
the  court  below  will,  on  the  call  of  the  docket,  be  affirmed. 
The  defendant  in  error  or  appellee,  if  he  do  not  argue 
orally,  can  file  a  brief  within  ten  days  after  the  time  fixed  for 
filing  the  brief  of  plaintiff*  in  error  or  appellant,  and  the 
latter  can  have  five  days  for  a  reply.  At  the  expiration  of 
this  time  the  case  will  stand  for  decision,  and  no  further 
argument  will  be  received." 

Third  district  appellate  court. — Rules  28  and  29  of  the 
third  district  of  the  appellate  court  (^)  provide  that 

28.  "In  all  cases  when  the  record  shall  have  been  filed 
with  the  clerk  not  less  than  ten  days  before  the  first  day  of 
the  term,  and  in  all  cases  continued  from  a  former  term,  the 
plaintiff*  in  error  or  appellant  shall  file  with  the  clerk  his 
abstracts  and  briefs  at  least  five  days  before  the  first  day  of 
the  term,  and  the  defendant  in  error  or  appellee  shall  file 
his  briefs  one  day  before  the  case  is  subject  to  call  for 
trial.  All  such  cases  shall  be  subject  to  call  at  the  rate  of 
twenty  cases  per  day  on  and  after  the  first  day  of  the  term. 

{h)  1  Bradwell's  App.  Ct.  R.  36. 
(i)    1  Bradwell's  App.  Ct.  R.  48. 


SUPREME  AND  APPELLATE  COURTS.  669 

Docket  —  Time  for  Filing  Abstracts,  etc. 

This  rule  shall  not  be  in  force  at  the  present  term.     (No- 
vember t.  1877.) 

29.  "  In  all  other  cases  not  included  in  the  above  rule,  the 
plaintiff  in  error  or  appellant  must  file  his  abstracts  and 
briefs  in  the  office  of  the  clerk  six  days  before  the  day  when 
the  cause  stands  subject  to  call ;  and  in  all  cases  in  the  event 
that  either  the  brief  or  abstract  is  not  filed  within  the  pre- 
scribed time,  the  judgment  or  decree  of  the  court  below  will, 
on  call  of  the  docket,  be  affirmed.  The  defendant  in  error 
or  aj)pellee  must  file  his  brief  in  the  clerk's  office  one  day 
before  the  case  is  subject  to  call  for  hearing ;  and  no  case 
under  this  rule  shall  be  called  before  the  second  Tuesday  of 
the  term.  All  cases  shall  be  called  at  the  rate  of  twenty 
cases  per  day." 

Fourth  district  appellate  court. — Rule  27  of  the  fourth 
district  of  the  appellate  court  (^')  provides  that 

"Hereafter  the  call  of  the  docket  will  commence  on  the 
third  day  of  the  term,  and  fifteen  cases  per  day  will  be  sub- 
ject to  call.  The  abstract  and  brief  of  plaintiff  in  error  or 
appellant  must  be  filed  in  the  clerk's  office  one  day  before  the 
day  when  a  cause  stands  subject  to  call ;  and  in  the  event  that 
either  abstract  or  brief  is  not  filed  within  the  prescribed  time, 
the  judgment  or  decree  of  the  court  below  will,  on  the  call  of 
the  docket,  be  affirmed.  The  defendant  in  error  or  appellee 
can  file  a  brief  within  ten  days  after  the  time  fixed  for  filing 
the  brief  of  plaintiff  in  error  or  appellant,  and  the  latter 
can  have  five  days  from  the  date  of  filing  brief  of  appellee 
or  defendant  in  error  for  a  reply,  at  the  expiration  of  which 
time  the  cause  will  stand  for  decision." 

Effect  of  failure  of  defendant  in  error  or  appellee  to  fie 
hriefs. — Rule  33  of  the  supreme  court  {k)  and  rules  27  of  the 


(j)    1  Bradwell's  App.  Ct.  R.  59. 

{k)    55  111.  xxvi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xi. 


670  SUPREME  AND  APPELLATE  COURTS. 

Assignment  of  EiTors,  and  Proceedings  Thereon. 

second,  30  of  the  third  and  28  of  the  fourth  district  of  the 
appellate  court  (1)  provide  that 

"  If  the  defendant  in  error  or  appellee  fail  to  file  his  brief 
within  the  prescribed  ten  days,  the  judgment  or  decree  will 
be  reversed  j?ro  forma,  unless  the  court,  on  examination  of 
the  record,  shall  deem  it  proper  to  decide  the  case  upon  its 
merits." 

Rehearing  docket. — Rule  57  of  the  supreme  court  (m)  and 
rules  36  of  the  second,  and  3Y  of  the  fourth  district  of  the 
appellate  court  (w)  provide  that 

"The  clerk  of  this  court  shall,  at  each  term,  docket  all 
petitions  for  rehearing,  separate  and  apart  from  the  trial 
docket." 

In  the  first  district  of  the  appellate  court,  all  cases  in 
which  a  rehearing  has  been  granted,  or  in  which  a  petition 
therefor  is  pending,  are  to  be  placed  by  the  clerk  on  the 
term  docket,  in  the  order  of  their  general  number.  (<?) 


SECTION  VIII. 

ASSIGIOIENT    OF    ERRORS,   AND    PROCEEDINGS   THEREON. 

Rule  16  of  the  supreme  court  {p)  and  rule  15  of  the  ap- 
pellate courts,  respectively,  {q)  provide  that 

"The  appellant  or  plaintifi"  in  error  shall  in  all  cases  assign 
errors  at  the  time  of  filing  his  record  in  this  court,  and  on 
failing  to  do  so  the  case  may  be  dismissed,  but  other  errors 
may  be  assigned  after  the  filing  of  the  record,  by  leave  of 
the  court.   The  appellee  or  defendant  in  error  shall  have  the 

[1)  1  Bradwell's  App.  Ct.  R.  36,  49, 59;  Cox  vs.  City  of  Tuscola;  3  Brad- 
well's  App.  Ct.  R.  628. 

(m)  59  111.  xxi. 

(n)  1  Bradwell's  App.  Ct.  R.  38,  61. 

(o)  1  Bradwell's  App.  Ct.  R.  26,  rule  32. 

(jo)  55  111.  xxii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  ix. 

(3)  1  BradweU's  App.  Ct.  R.  22,  38,  45,  56. 


SUPREME  AND  APPELLATE  COURTS.  671 

Assignment  of  Errors,  and  Proceedings  Thereon. 

right  to  assign  cross-errors  witliin  two  days  after  the  record 
is  filed  in  this  court,  and  not  afterward  without  special  leave 
of  the  court.  The  assignment  of  errors  and  cross-errors 
must  be  written  upon  or  attached  to  the  record."  (r) 

An  assignment  of  errors  is  in  the  nature  of  a  declaration, 
and  at  common  law  was  either  of  errors  in  fact,  coratn  nohis^ 
or  errors  in  law.  The  former  consisted  of  matters  of  fact 
not  appearing  on  the  face  of  the  record,  which,  if  true,  prove 
the  judgment  to  have  been  erroneous.  An  error  of  fact 
and  error  of  law  could  not  be  joined  in  one  assignment.  If 
the}^  were  so  joined  it  could  be  taken  advantage  of  by  de- 
murrer, {s) 

Writs  of  error  in  fact,  or  coram  7iohis,  are  no  longer  in  use 
in  this  state.  The  66th  section  of  the  Practice  Act  provides 
that 

' '  The  writ  of  error  coram  7iohis  is  hereby  abolished,  and 
all  errors  in  fact  committed  in  the  proceedings  of  any  court 
of  record,  and  which  by  the  common  law  could  have  been 
corrected  by  said  writ,  may  be  corrected  by  the  court  in 
which  the  error  was  commited,  upon  motion  in  writing  made 
at  anytime  within  five  years  after  the  rendition  of  final  judg- 
ment in  the  case,  upon  reasonable  notice.  When  the  person 
entitled  to  make  such  motion  shall  be  an  infant,  feme  covert^ 
non  compos  mentis^  or  under  duress,  at  the  time  of  passing 
judgment,  the  time  of  such  disability  shall  be  excluded  from 
the  computation  of  said  five  years."  {f) 

Writs  of  error  to  correct  errors  of  law  appearing  in  the 
record  of  the  proceedings,  apparent  on  the  face  thereof,  is 
the  writ  in  common  use  in  this  state.  Its  object  is  to  review 
and  correct  an  error  of  the  law  committed  in  the  inferior 

(r)    ailhs  vs.  Blackwell,  40  111.  51. 

is)  Tidd's  Pr.  1168;  Freeborn  vs.  Denman,  2  Halst.  190;  Fitch  vs. 
Lothrop,  2  Root,  524;  Clarke  vs.  Bell,  2  Litt.  162;  Moody  vs.  Vreeland,  7 
Wend.  55. 

(0  Rev.  Stat.  (1874)  782;  Rev.  Stat.  (1877)  743;  see  Coursen  vs.  Hixon, 
78  111.  339;  Fix  vs.  Quinn,  75  lU.  233. 


672  SUPEEME  AND  APPELLATE  COURTS. 

Assignment  of  Errors  —  Form  of. 

court,  which  is  not  amendable  or  cured  at  common  law  or  bj 
sonie  statutes  of  amendment  or  jeofail,  {u) 

The  supreme  or  appellate  court  will  not  consider  any  errors 
not  assigned  uDon  the  record,  {v) 

Additional  errors  may  be  assigned,  in  the  discretion  of  the 
court.  But  after  issue  is  formed  leave  will  not  be  granted 
to  assign  additional  errors,  except  upon  good  cause  shown, 
and  a  motion  for  that  purpose  must  be  in  writing,  {yo) 
They  cannot  be  assigned  after  the  argument  of  the  cause, 
unless  by  consent  of  the  appellee  or  defendant  in  error,  (a?) 
One  defendant  cannot  assign  or  urge  error  as  to  another 
who  is  not  complaining,  unless  it  prejudices  his  rights  or 
affects  his  interests,  (y) 

No.  ^56.     Form  of  assignment  of  errors. 

In  the  Supreme  {or  Appellate)  Court  of  the  State  of  Illinois. 

Grand  Division 


{or District)^ 


Term,  18- 


C.  D.,  plaintiff  in  error      ~| 

{or  appellant)  \  Writ   of    error    to   {or   appeal 

vs.  V     froiii)  the Court  of  the 

A.  B,,  defendant  in   error  County  of . 

{or  aiypellee).  J 

And  now  comes  C.  D.,  the  plaintiff  in  error  {or  appellant)^ 
by his  attorney,  and  says,  that  in  the  record  and  pro- 
ceedings and  in  rendering  judgment  aforesaid,  there  is  mani- 
fest error  in  this,  to  wit : 

(m)    Tidd's  Pr.  1060;  Bacon's  Abr.,  Error;  3  Black.  Comm.  405. 

{v)  Gilbert  vs.  Maggard,  1  Scam.  433;  Jackson  vs.  Warren,  32  111.  331; 
Protection  Life  his.  Co.  vs.  Foote,  79  111.  361;  Meyers  vs.  Andrews,  87  III. 
433. 

[w)    Anonymous,  40  111.  54. 

{x)    Bristol  vs.  City  of  Chicago,  21  111.  605.  ■ 

(//)  Reed  vs.  Boyd,  84  111.  66;  L.  S.  &  M.  S.  R.R.  Co.  vs.  McMillan,  84 
111.  208;  Stone  vs.  Wood,  85  111.  603;  Robinson  vs.  Broivn,  82  111.  279;  ShoH 
vs.  Raub,  81  111.  509;  Rowand  vs.  Carroll,  81  111.  224;  Kolb  vs.  O'Brien,  86 
111.  210;  Dickerson  vs.  Hendryx,  88  111.  66;  Pierson  vs.  Hendryx,  88  111.  34; 
see  Curtis  vs.  Baugh,  90  111.  184. 


SUPEEME  AND  APPELLATE  COURTS.  673 

Assignment  of  Errors  —  Cross-Errors. 

I.  The  court  below  admitted  improper  evidence  on  the 
part  of  the  plaintiff. 

II.  The  court  below  rejected  proper  evidence  on  the  part 
of  the  defendant. 

III.  The  court  erred  in  giving  improper  instructions  on 
behalf  of  the  plaintiif. 

ly.  The  court  refused  proper  instructions  asked  by  the 
defendant. 

Y.  The  court  erred  in  overruling  the  motion  of  the  de- 
fendant to  set  aside  the  verdict  of  the  jury,  and  for  a  new 
trial. 

VI.  The  court  erred  in  rendering  a  judgment  in  favor  of 
the  plaintiff  and  against  the  defendant. 

By  reason  whereof  the  plaintiif  in  error  {or  ajyjpellant) 
jDrays  that  said  judgment  may  be  reversed,  etc. 

By ,  his  attorney. 

Cross-errors. — Section  78  of  the  Practice  Act,  as  amended 
by  the  act  of  1877,  provides  that 

"In  all  cases  of  appeal  to  the  supreme  court  or  appellate 
court,  or  writ  of  error,  the  appellee  or  defendant  in  error 
may  assign  cross-errors,  and  the  court  shall  dispose  of  the 
same  as  in  other  cases  of  assigment  of  error."  (s) 

"When  the  appellee  or  defendant  in  error  does  not  assign 
cross-errors,  he  cannot  insist  on  any  errors  as  against  him- 
self, {a) 

Joinder  in  error. — To  an  assignment  of  errors  the  appellee 
or  defendant  may  plead  the  common  plea,  ov  joinder.,  as  it  is 
frequently  called,  is  in  nullo  est  erratum  ;  or  that  there  is  no 
error  in  the  record  or  proceedings ;  which  is  in  the  nature  of 
a  demurrer,  and  at  once  refers  the  matter  of  law  arising 
thereon  to  the  judgment  of  the  court. 

By  joining  in  error  the  appellee  or  defendant  in  error 


(z)  Laws  of  1877,  p.  151;  Rev.  Stat.  (1877)  744;  see  rule  16  of  supreme 
court  and  15  of  appellate  court,  ante,  p.  670;  Hatfield,  vs.  Fowler,  60  111.  15; 
Cable  vs.  EUh,  86  111.  525. 

(a)  Dickson  vs.  C.  B.  <£:  Q.  R.R.  Co.,  81  111.  215;  The  People  vs.  Brislin, 
80  111.  423;  Johnston  vs.  Maples,  49  111.  101;  Pollard  vs.  King,  63  III.  286; 
HI.  B.  Society  vs.  Baldwin,  86  111.  479. 


674  SUPKEME  AND  APPELLATE  COURTS. 

Assignment  of  Errors  —  Form  of — Release  of. 

admits  the  record  to  be  perfect ;  the  effect  of  his  plea  is  that 
the  record  in  its  present  state  is  without  error ;  [h)  and  there- 
fore after  joining  in  error  neither  party  can  allege  diminu- 
tion, or  praj  a  certiorari,  {c)  without  obtaining  leave  to 
withdraw  the  joinder  for  that  purpose,  (d) 

No.  257.     Form  of  joinder  in  error. 

In  the  Supreme  {or  Appellate)  Court  of  the  State  of  Illinois. 

Grand  Division 

{or District)., 

Term,  18—. 

A.  B.  ) 

(its  '  >  ^^^^  ^^  error  to  {or  appeal  from)  the Court  of 

n  Y)    \      the  County  of . 

And  the  said  A.  B.,  the  defendant  in  error  {or  appellee^, 

by — ,  his  attorney,  comes  and  says  that  there  is  no  error, 

either  in  the  record  and  proceedings  aforesaid,  or  in  giving 
judgment  aforesaid,  in  manner  and  form  as  above  assigned; 
and  therefore  he  prays  that  the  said  judgment  may  be 
affirmed,  that  his  costs  may  be  adjudged  to  him,  etc. 

By ,  his  attorney. 

Special  pleas  to  an  assignment  of  errors  contain  matters  in 
confession  and  avoidance,  as  a  release  of  errors,  or  the  stat- 
ute of  limitation,  etc.,  to  which  the  plaintiff  in  error  may 
reply  or  demur,  and  proceed  to  trial  or  argument. 

By  pleading  specially  the  appellee  or  defendant  in  error 
waives  the  right  to  join  in  error.  If  he  should  plead  a  re- 
lease of  errors,  and  be  unable  to  sustain  his  plea,  he  cannot 
afterward  be  allowed  to  join  in  error,  {e)  If  a  special  plea 
is  sustained  by  proof,  the  j-udgment  of  the  court  below  will 
stand  affirmed,  {f) 

Release  of  errors. — A  plea  of  release  of  errors  should  aver 

(fc)  Tidd's  Pr.  1174. 

(c)  Boynton  vs.  Champlin,  40  111.  63. 

(d)  lb.;  Gibbs  vs.  Blackivell,  40  111.  63;  Steele  vs.  The  People,  40  111.  59. 

(e)  Austin  vs.  Bainer,  40  111.  82;  see  Dinet  vs.  PfirsJmtg,  86  111.  83. 
(/)  Smucker  vs.  Larimore,  21  111.  267. 


SUPEEME  AND  APPELLATE  COURTS.  675 

Release  of  Errors. 

that  it  was  by  deed,  by  parol,  or  by  acts  m  pais.  It  should 
state  the  facts  that  are  relied  on  as  a  release  of  errors,  {g) 

The  payment  of  a  judgment  before  execution  issues,  (A) 
or  the  granting  of  an  injunction  to  stay  proceedings  subse- 
quent to  a  judgment,  (^)  will  not  operate  as  a  release  of 
errors. 

"Where  a  party,  by  his  warrant  of  attorney  to  confess  a 
judgment,  authorizes  the  release  of  all  errors,  and  his  attor- 
ney under  such  warrant  does  so,  this  will  preclude  him  from 
assigning  error  to  the  proceedings,  {j) 

Where  a  party  voluntarily  receives  the  benefit  of  a  judg- 
ment or  decree,  he  cannot  afterward  allege  that  the  same 
was  erroneous ;  and  a  plea  of  a  release  of  errors  thereby 
would  be  sustained,  (/t)  Nor  can  a  party  avail  himself  of  a 
part  of  a  decree  in  his  favor  and  secure  its  fruits,  and  then 
reverse  in  an  appellate  court  such  portions  as  militate  against 
him.  If  a  decree  is  reversed  -the  parties  should  be  placed  in 
statu  quo.  (1) 

Acts  in  2>ais^  occurring  either  before  or  after  the  rendition 
of  a  decree,  to  reverse  which  a  writ  of  error  is  sued  out, 
which  would  make  it  fraudulent  in  either  j)arty  to  seek  a 
reversal  of  the  decree,  may  be  pleaded  in  bar  of  the  writ.(??i) 

A  party  to  a  record  cannot  release  an  error  which  is  per- 
sonal to  another  party.  But  a  release  by  one  of  several  de- 
fendants to  a  record  where  the  error  only  relates  to  the  party 
who  executes  the  release,  is  good,  (n) 

A  release  of  errors,  although  presented  in  writing,  signed 


•  [g)  Corwin  vs.  Shoup,  76  111.  246;  see  Chamhlin  vs.  Blair,  58  111.  385; 
Kern  vs.  Zinh,  55  111.  449. 

(A)    Richeson  vs.  Ryan,  14  111.  74. 

(0  St.  L.  &  T.  H.  R.R.  Co.  vs.  Todd,  40  111.  89;  McConnell  vs.  Ayers, 
3  Scam.  210. 

ij)    Hall  vs.  Hamilton,  74  111.  487;  Hall  vs.  Jones,  32  111.  38. 

{k)  Ruckman  vs.  Ahvood,  44  111.  183;  Morgan  vs.  Ladd,  2  Gilm.  414; 
TJiomas  vs.  Negus,  2  Gilm.  700;  Corwin  vs.  Shonp^'^Q  111.  246. 

{I)    Holt  vs.  Rees,  46  111.  181. 

(w)  Austin  vs.  Bainter,  40  111.  82. 

(w)    Henrickson  vs.  Van  Winkle,  21  111.  274. 


676  SUPREME  AND  APPELLATE  COURTS. 

Release  of  Errors  —  Form  of. 

by  the  parties  in  whose  names  a  writ  of  error  was  sued  out, 
cannot  be  properly  brought  to  the  notice  of  the  court  except 
by  being  pleaded,  (o) 

Tiine  of  filing  pleas. — Eule  58  of  the  supreme  court,  (^) 
and  rules  38  of  the  second  district  and  39  of  the  fourth  dis- 
trict of  the  appellate  court  (</)  provide  that 

"When  the  defendant  in  error  or  appellee  desires  to 
plead  instead  of  joining  in  error,  he  shall  file  his  plea  or 
pleas  in  the  office  of  the  clerk  within  one  day  after  the  time 
at  which  the  transcript  of  the  record  of  the  court  below  is 
required  to  be  filed,  unless  for  cause  shown,  the  time  for 
filing  such  plea  or  pleas  be  extended." 

No.  258.     Plea  of  Release  of  Errors. 

In  the  Supreme  {or  Appellate)  Court  of  the  State  of  Illinois. 

Grand  Division 

{or District), 

Term,  18  — . 

A.  B.,  deft  in  error  "^ 

{or  appellee)  \   ^^..^  ^^  ^^^^^,  ^^  ^^^  ^^^^^^^  ^^^^^^  ^^^ 

r,   T^       f^S'  •  I  Court  of  the  County  of . 

C.  D.,  pin  m  error  |  '' 

{or  appellant^.        J 

And  the  defendant  in  error,  {or  apj)ellee)  by ,  his  at- 
torney, comes  and  says  that  the  plaintiif  in  error  {or  appel- 
lant) ought  not  to  maintain  his  said  writ  of  error  {or  appeal) 
in  this  behalf  against  him,  the  defendant  in  error  {or  ap- 
pellee)., because,  he  says,  that  after  the  rendition  of  said  de- 
cree {or  judgment).,   and  before  the  suing  out  of  the  writ  of 

error  {or  the  prosecution  of  said  appeal).,  on  to  wit,  the 

day  of ,  18 — ,  the  plaintiff  in  error  {or  appellant).,  by  his 

deed,  bearing  date  of  that  day,  and  now  to  the  court  here 
shown,  released  to  the  defendant  in  error  {or  appellee)  any 
and  all  errors  in  the  record  and  proceedings  aforesaid,  as  by 
the  said  deed,  reference  thereto  being  had,  will  more  fully 

(o)  Kern  vs.  Zink,  55  111.  449;  Trustees  of  Schools  vs.  Hihler,  85  111. 
409. 

(p)  59  III.  xxi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xv. 

(q)  1  Brad  well's  App.  Ct.  R.  39,  61. 


SUPKEME  AND  APPELLATE  COURTS.  677 

Release  of  Errors  —  Motions. 

appear ;  and  this  the  defendant  in  error  {or  ajjpellee)  is  ready 
to  verify.  Wherefore,  he  prays  judgment  if  the  plaintiff  in 
error  {or  appellant)  ought  to  maintain  his  said  writ  of  error 
{o7'  appeal)  against  him,  etc. 

By his  attorney. 

For  form  of  a  release  of  error  by  deed  by  one  of  several 
defendants  in  error,  see  Henrickso7i  vs.  Van  Winkle^  21  111. 
2Y4;  and  that  plaintiff  in  error  has  received  the  benefit  of 
the  decree  sought  to  be  reversed,  see  Austin  vs.  Bainter^  40 
111.  85 ;  Corwin  vs.  Shoup^  Y6  111.  248 ;  Smucker  vs.  Lari- 
more,  21  111.  267. 

Replications  to  special  pleas  may  be  filed  traversing  the 
allegations. 

Trial  of  issues. —  Issues  of  fact  will  not  be  tried  by  the 
supreme  or  appellate  courts,  except  by  consent.  If  the  par- 
ties consent,  the  issues  will  be  tried  upon  evidence  in  writing. 
The  court  will  not  hear  oral  testimony.  If  the  parties  do 
not  consent  to  have  the  issues  tried  in  the  court  of  appeal,  or 
if  the  evidence  is  not  to  be  presented  in  writing,  the  issue 
will  be  sent  to  the  court  below  to  which  the  writ  of  error 
was  sued  out,  or  from  which  the  appeal  was  taken,  to  be 
there  tried  by  a  jury,  and  their  finding  certified  to  the  su- 
preme or  appellate  court,  as  the  case  may  be.  (r) 


SECTION  IX. 

MOTIONS,   {s) 

When  to  he  made. — Rule  21  of  the  supreme  court,  and  rule 
lY  of  the  third  and  fourth  districts  of  the  appellate  court, 
provide  that 

(r)  Austin  vs.  Bainter,  40  III.  82;  People  vs.  Young,  40  111.  87j  People 
vs.  Supervisors,  40  111.  87. 

(s)  55111.  xxiii;  Puterbaugh's  Com.  L.  PI.  and  Pr.  ix,  x;  Bradwell's  App. 
Ct.  R.  22,  34,  46,  57. 


678  SUPREME  AND  APPELLATE  COURTS. 

Motions  —  Affidavits  in  Support  of,  etc. 

"Motions  may  be  made  immediately  after  the  decisions 
of  tlie  court  are  announced,  but  at  no  other  time,  unless  in 
case  of  necessity,  or  in  relation  to  a  cause  wLon  called  in 
course." 

And  in  addition  to  the  above  in  rule  17  of  the  first  and 
second  districts  of  the  appellate  court,  the  following  clause 
was  added :  "Motions  for  orders  of  course  will  be  entered  by 
the  clerk,  with  orders  of  course  made  thereon,  viz  :  for  hear- 
ing, taken  under  advisement  and  entering  decisions,  in  such 
manner  that  a  perfect  record  may  be  kept  of  each  step  in  the 
cause.'' 

In  ivhat  order.— Y\\\\q  22  of  the  supreme  court,  and  rule  18 
of  the  third  disti'ict  of  the  appellate  court,  provide  that 

"  Motions  are  to  be  made  by  the  attorneys  in  the  following 
order :  First,  by  the  attorney-general ;  next,  by  the  oldest 
practitioner  at  the  bar   and  so  on  to  the  youngest." 

Special  motixms. — The  23d  rule  of  the  supreme  court,  and 
rule  18  of  the  first,  second  and  fourth  and  19  of  the  third 
districts  of  the  appellate  court,  provide  that 

"All  special  motions  shall  be  in  writing  and  filed  with  the 
clerk,  together  with  the  reasons  in  support  thereof,  at  least 
one  day  before  they  shall  be  submitted  to  the  court.  Objec- 
tions to  motions  must  also  be  in  writing.  Oral  arguments  will 
not  be  heard." 

Special  motions  are  not  considered  by  the  court  until  the 
day  following  that  on  which  they  are  entered,  {p 

Affidavits  in  support  of  motion. — Rule  2-1  of  the  supreme 
court,  and  rule  19  of  the  first,  second  and  fourth  and  20  of 
the  third  districts  of  the  appellate  court,  provide  that 

"  When  a  motion  is  intended  to  be  based  on  matters  which 
do  not  appear  by  the  record,  the  facts  must  be  disclosed  and 
supported  by  affidavit." 

Thus,  a  motion  for  extension  of  time  for  filing  a  transcript 

{t)     U.  S.  Ex.  Co.  vs.  Bedbury,  40  111.  122. 


SUPREME  AND  APPELLATE  COURTS.  679 

Suggestion  of  Diminution  of  Record. 

of  the  record,  {u)  and  a  suggestion  of  diminution  of  record, 
must  be  in  writing,  and  supported  by  an  affidavit,  {v) 

Motion  to  vacate  orders. — Rule  20  of  the  appellate  court  of 
the  fourth  district  provides  that 

"Motions  to  vacate  orders,  affirming  or  reversing  judg- 
ments ^j/'O  forma  and  of  continuance,  and  taking  causes  on 
the  docket,  will  not  be  considered  by  the  court  unless  reason- 
able notice,  in  writing,  shall  have  been  given  to  the  opposite 
party  or  his  attorney,  of  an  intention  to  present  such 
motion." 

SECTION  X. 

SUGGESTION    OF    DIMINUTION    OF    RECORD. 

If  there  is  any  portion  of  the  record  in  the  court  below 
which  has  been  omitted  from  the  transcript  of  the  record,  it 
can  only  be  supplied  upon  a  suggestion  of  a  diminution  of  the 
record,  supported  by  an  affidavit  of  that  fact,  when  the  court 
will  award  a  writ  of  certiorari  to  the  court  from  which  the 
cause  is  brought  for  a  complete  record,  {to) 

Should  matter  be  copied  into  the  transcript  as  a  part  of 
the  bill  of  exceptions  which  is  not  contained  in  the  original 
bill  of  exceptions,  the  proper  course  is,  upon  proper  sugges- 
tion, supported  by  affidavit,  to  ask  for  a  writ  of  certiorari^ 
so  that  a  correct  record  may  be  brought  up.  (x) 

When  to  he  suggested. — A  defendant  in  error,  to  avail  him- 
self of  a  diminution  of  record,  should  move  for  a  writ  of  cer- 


(m)     Webster  vs.  Pierce,  40  111.  39. 

[v)  Von  Glahn  vs.  Von  Glahn,  40  111.  73;  Waterman  vs.  Raymond,  40 
111.  63. 

[w)  Von  Glahn  vs.  Von  Glahn,  40  111.  73;  Ballance  vs.  Leonard,  40  111. 
72;  Gardner  vs.  Diedrich,  40  111.  72;  Rowley  vs.  Hughes,  40  111.  71;  Schirmer 
vs.  The  People,  40  111.  66;  Gihbs  vs.  Blackwell,  40  111.  66;  Steele  vs.  The  People, 
40  111.  59;  Boynton  vs.  Champlin,  40  111.  63;  Waterman  vs.  Raymond,  40  111. 
63;  Bergan  vs.  Riggs,  40  111.  61;  Brooks  vs.  Bruyn,  40  111.  64. 

[x)    III.  C.  R.R.  Co.  vs.  Parish,  40  111.  70;  Reed  vs.  Curry,  40  111.  73. 


€80  SUPKEME  AND  APPELLATE  COUKTS. 

Suggestion  of  Diminution  of  Record  —  Form  of. 

tiorari  before  joinder  in  error,  or  in  case  he  has  joined  in 
error,  should  obtain  leave  to  withdraw  his  joinder  for  that 
purpose,  {y) 

An  application  for  a  writ  of  certiorari^  to  enable  the  party 
to  bring  up  a  more  perfect  transcript  of  the  record,  will  not 
be  entertained  after  the  term  at  which  the  cause  was  sub- 
mitted to  the  court  for  decision,  (2)  nor  will  it  be  entertained 
on  an  application  for  a  rehearing. 

Costs  on  certiorari. — If  it  shall  appear,  upon  a  return  of  a 
aertiorari.^  that  the  application  for  the  writ  was  frivolous,  the 
party  will  not  be  allowed  any  costs  therefor. 

No.  259.     Form,  of  suggestion  of  dirninution  of  record. 
In  the  Supreme  [or  Apjyellate)  Court  of  the  State  of  Illinois. 

Grand  Division 

{or District), 

Term,  18—. 

A.  B.,  pi' if  in  error  ^ 

^         ,  [  "Writ  of  error  to  [or  appeal  from)  the 

€.  D.,  deft  in  error  |       ^^^^^^  ^f  the  county  of . 

{or  appellee).         J 
And  now,  on  this day  of ,  18 — ,  comes  the  de- 
fendant in  error  {or  appellee).,  by ,  his  attorney,  and  sug- 
gests to  the  court  here  that  in  the  transcript  of  the  record 

returned  in  tliis  cause  from  the Court  of  the  County  of 

there  are  certain  defects,  that  is  to  say  :   {Here  set  forth 

jparticularly  the  defects  or  om.issions.) 

Wherefore,  the  defendant  in  error  (or  aiJpellee)  prays  that 
a  writ  of  certiorari  may  be  awarded,  directed  to  the  clerk  of 
said  court,  to  send  up  a  true  transcript  of  the  record  and  pro- 
ceedings of  the  said  court,  etc. 

.  Atty.for  deft,  in  error., 

{or  appellant.) 
{Add  affidavit  of  the  defects  or  omissions'.) 

iy)  Boynton  vs.  ChampUn,  40  111.  63;  Gibbs  vs.  Blackivell,  40  111.  66;  see 
Jones  vs.  Sprague,  2  Scam.  55. 

{z)    Steele  vs.  The  People,  40  111.  59;   f7.  S.  Ex.  Co.  vs.  Bedbunj,  40  111.  60. 
(a)    Boynton  vs.  Champlin,  40  111.  63. 


SUPKEME  AND  APPELLATE  COURTS.  681 

Original  Papers  —  Abstract  of  the  Record. 

The  granting  of  the  writ  of  certiorari  does  not  delay  the 
hearing  of  the  cause,  without  a  special  order  to  that  effect,  {h) 


SECTION  XI. 

ORIGINAL    PAPERS. 

When  they  loill  he  compelled  to  he  produced. — "Where  it 
is  made  to  appear  by  affidavit  that  an  original  paper  used  on 
the  trial  below  ought  to  be  inspected  by  the  supreme  or 
appellate  court,  and  such  paper  is  in  the  hands  of  a  party  to 
the  suit,  a  rule  will  be  entered  requiring  such  party  to  pro- 
duce the  paper  or  show  cause  why  he  should  not  do  so.  (c) 
But  when  the  paper  is  in  the  custody  of  the  court  below,  or 
of  its  legal  custodian,  the  court  above  has  no  control  over 
it.  {d) 

The  supreme  or  appellate  court  will,  upon  mere  suggestion 
that  the  inspection  of  an  original  paper  is  important  in 
determining  the  rights  of  the  parties,  request  the  clerk  of  the 
court  below  to  send  them  up  for  that  purpose.  Or  perhaps, 
upon  proper  application,  the  necessity  of  so  doing  being 
shown,  the  court  would  award  a  suhpmia  duces  tecum^  and 
thereby  require  the  clerk  to  appear  in  person  and  produce 
the  original  papers  for  the  inspection  of  the  court,  {e) 


SECTION  XII. 

ABSTRACTS    OF   THE    RECORD. 

Rule  26  of  the  supreme  court  (^/")  is  as  follows: 

"In  all  cases,  the  party  bringing  a  cause  into  this  court 

(fe)     Beed  vs.  Curry.  40  111.  73. 

(c)  Holhrook  vs.  Nichol,  40  111.  75;  Cameron  vs.  Savage,  40  111.  76;  Anontf' 
tnous,  40  111.  77. 

(d)  Cameron  vs.  Savage,  40  111.  76;  Anonymous,  40  111.  77. 

(e)  Anonymous,  40  111.  77;  Cameron  vs.  Savage,  40  111.  76. 
(/)    55  111.  xxiv;  Puterbaugh's  Com.  Law  PI.  and  Pr.  x. 


682  SUPREME  A.ND  APPELLATE  COURTS. 

Abstract  of  the  Record. 

shall  furnish  a  complete  abstractor  abridgment  of  the  record 
therein,  referring  to  the  appropriate  pages  of  the  record  by 
numerals  on  the  niai-gin.  and  shall  cause  such  abstract  to  be 
printed  in  a  neat  and  workmanlike  manner,  with  small-pica 
type  and  leaded  lines,  on  one  side  only,  ujjon  white  foolscap 
paper,  leaving  a  margin  at  least  two  inches  in  width  on  the 
left-hand  side  of  each  sheet.  Ten  copies  of  such  printed 
abstract  shall  be  filed  in  each  case,  one  for  each  of  the  judges, 
one  for  the  defendant  in  error  or  appellee,  one  for  the  report- 
er, and  one  to  be  filed  with  the  record." 

Rule  21  of  the  first  district,  20  of  the  second,  22  of  the 
third  and  fourth,  are  substantially  the  same  as  the  rule  of  the 
supreme  court,  except  that  only  six  copies  of  the  abstract  are 
required  to  be  filed  in  the  first  district,  and  five  in  each  of 
the  second,  third  and  fourth  districts.  (^) 

Rule  27  of  the  supreme  court,  (A)  and  rules  22  of  the  first, 
21  of  the  second,  23  of  the  third  and  fourth  districts  of  the 
appellate  court,  {%)  provide  that 

"The  defendant's  counsel  shall  be  permitted,  if  he  is  not 
satisfied  with  the  abstract  or  abridgment  furnished  by  the 
plaintifi''s  counsel,  to  furnish  each  of  the  justices  of  this 
court  with  such  further  abstracts  as  he  shall  deem  necessary 
to  a  full  understanding  of  the  merits  of  the  cause." 

When  the  defendant  in  error  files  an  additional  abstract, 
"under  the  above  rule,  the  court  will,  upon  examining  the 
case,  determine  upon  the  necessity  of  the  additional  abstract, 
and  award  the  costs  accordingly,  {j) 

The  supreme  or  appellate  court  will  refuse  to  consider 
a  case  where  a  defective  abstract  is  furnished,  which  only 
refers  to  the  pages  of  the  record  to  be  examined,  instead 


(g)     1  Bradweirs  App.  Ct.  R.  23,  34,  47.  58. 
{h)    55  III.  xxiv;  Puterbaugh's  Com.  L.  PI.  and  Pr.  x. 
(i)     1  Bradwell's  App.  Ct.  R.  23,  35.  47.  58. 

0*)    Fhelps  vs.  Funkhouser,  40  111.  27;  Bosttvickys.  Williams,  40  111.  113j 
Johnston  vs.  Bancock,  38  111.  111. 


SUPREME  AND  APPELLATE  COURTS.  683 

Abstract  of  the  Record. 

of  presenting  the  questions  of  fact ;  (k)  and  where  no  printed 
abstracts  are  filed  the  court  may,  in  its  discretion,  dismiss  the 
cause.  (/) 

Wliere  the  abstract  fails  to  present  the  evidence  satisfac- 
torily, it  is  the  privilege  and  duty  of  the  appellee  or  defend- 
ant in  error  to  file  a  corrected  one,  showing  what  is  omitted 
or  not  fully  stated,  (m) 

Where  an  insufficient  number  of  abstracts  are  filed,  a 
short  rule  may  be  taken  on  the  plaintiff"  in  error  or  appellant 
to  file  the  proper  number,  (n) 

Amended  abstracts  may  be  filed  without  leave  of  the 
court,  (o) 

Evidence  must  be  condensed  in  tlie  abstract.  If  that 
which  purports  to  be  an  abstract  contains  the  questions  pro- 
pou'nded,  and  the  answers  of  the  witnesses  in  full,  it  is  in  no 
sense  an  abstract  of  the  testimony,  but  is  in  direct  violation 
of  the  rules  of  the  supreme  court,  and  the  party  furnishing 
it  will  be  allowed  no  costs  for  printing  it.  (2^) 

If  the  error  assigned  is  in  sustaining  a  demurrer  to  pleas, 
the  abstract  should  set  out  the  demurrer  and  pleas,  so  as  to 
enable  the  court  to  determine  whether  there  was  error  or 
not.  {q) 

Rule  59  of  the  supreme  court,  adooted  at  the  January 
term,  1874,  is  as  follows : 

'■^Ordered,  In  all  cases  where  the  evidence  shall  be  taken 
and  written  out  by  a  short-hand  reporter,  and  shall  be  em- 
bodied in  the  bill  of  exceptions  or  certificate  of  evidence, 

{k)  Kelleher  vs.  Tisdale,  23  111.  405:  Shacl-Ieford  vs.  Bailey,  35  111.  387; 
see  Marseilles  Land  Co.  vs.  Aldrich,  86  111.  504;  Israel  vs.  Town  of  White- 
hall, 2  Brad  well's  App.  Ct.  R.  509. 

(I)  Buttenvorth  vs.  Brown,  26  111.  156;  Prettyman  vs.  Barnard,  37  III. 
105;  Holden  vs.  Herkimer,  53  111.  258;  Chavis  vs.  Reed,  40  111.  55. 

(w)    Yazel  vs.  Palmer,  88  111.  597. 

(n)     Spear  vs.  D'Clerc)/,  40  111.  56. 

(0)     Anonymous,  40  111.  56. 

(p)  Kelly  vs.  Kellogg,  79  111.  477;  Chicago  d-  A.R.R.  Co.  vs.  Rockford, 
R.  I.  <&  St.  L.  R.R.  Co.,  72  111.  34;  Skiles  vs.  Caruthers,  88  111.  458. 

(g)    III.  Cent.  R.R.  Co.  vs.  Parks,  88  111.  373. 


€84  SUPREME  AND  APPELLATE  COURTS. 

Abstracts  —  Brief  and  Argument. 

the  same  shall  not  be  printed  in  the  abstract  as  returned  by 
such  reporter,  but  the  same  shall  be  by  plaintiff  in  error  or 
appellant  condensed  so  as  to  present  the  substance  of  such 
evidence  clearly  and  concisely  in  the  abstract."  (r) 

Tiine  for  filing  abstracts. — See  rules  32,  33  and  34  of  the 
supreme  court,  and  rules  27,  28  and  29  of  the  first  and 
fourth,  26  and  27  of  the  second  and  28,  29  and  30  of  the 
third  district  of  the  appellate  court,  ante^  page  ^^^. 

Costs  of  abstracts. — Rule  53  of  the  supreme  court,  as 
amended  by  the  court  at  October  term,  1875,  {s)  and  rules  36 
of  the  first,  37  of  the  second,  44  of  the  third  and  38  of  the 
fourth  district  of  the  appellate  court,  {t)  provide  that 

"Upon  printed  abstracts  being  furnished,  in  any  of  the 
grand  divisions,  in  conformity  to  the  rules  of  this  court,  it 
shall  be  the  duty  of  the  clerk  to  tax  a  printer's  fee,  at  the  rate 
of  twenty  cents  for  each  one  hundred  words  of  one  copy  of 
such  abstract,  against  the  unsuccessful  party  not  furnishing 
such  abstracts,  as  costs  to  be  recovered  by  the  successful 
party  furnishing  the  same." 

When  an  abstract  is  so  imperfect  and  inartistically  drawn 
as  to  give  the  court  but  little  aid  in  examining  the  record, 
no  costs  will  be  allowed  the  appellant  or  plaintifl'  in  error 
for  making  or  printing  the  same.  {}i) 

SECTION   XIII. 

BRIEF    AND    ARGUMENT. 

Briefs. — Rule  28  of  the  supreme  court,  {v)  and  rules  23  of 
the  first  and  24  of  the  third  and  fourth  districts  of  the  appel- 
late court,  iio)  are  as  follows: 

(r)    Puterbaugh's  Com.  Law  PI.  and  Pr.  xv;  59  111.  xxii. 

(s)    55  111.  xxix;  69  111.  x;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xiv. 

(<)    Bradwell's  App.  Ct.  R.  27,  39,  51,  61. 

(m)  Marseilles  Land  Co.  vs.  Aldrich,  86  111.  505. 

(r)     55  111.  xxv;  Puterbaugh's  Com.  Law  PI.  and  Pr.  x. 

(w)    1  Bradwell's  App.  Ct.  R.  24,  47,  58. 


SUPREME  AND  APPELLATE  COURTS.  685 

Brief  and  Argument. 

"Printed  briefs  will  be  required  in  all  eases,  whether 
argued  orally,  in  full,  or  in  part  only,  or  when  submitted  on 
briefs  without  oral  argument.  The  briefs  required  should 
contain  a  short,  clear  statement  of  the  points  and  the  au- 
thorities in  support  thereof;  and  in  citing  cases  from  pub- 
lished reports,  counsel  will  be  required  not  only  to  give  the 
book  and  page,  but  also  the  names  of  the  parties  as  they 
appear  in  the  title  of  the  reported  case ;  and  the  names  of 
counsel  filing  brief  or  abstract  must  appear  to  the  same. 
But  the  filing  of  a  printed  brief  shall  not  preclude  the  party 
from  filing  full  printed  or  written  arguments  in  support  of 
his  brief,  of  points  and  authorities,  provided  he  does  so 
within  the  time  his  printed  brief  is  required  to  be  filed." 

Rule  22  of  the  second  district  of  the  appellate  court  is  the 
same  as  the  above,  with  the  following  clause  added: 

"Briefs  and  arguments  must  not  contain  personal  reflec- 
tions upon  the  court  below,  uncivil  and  unkind  remarks  or 
epithets  in  relation  to  the  opposing  counsel,  nor  unnecessary 
and  irrelevant  vilification  of  the  opposite  party  and  wit- 
nesses." {x) 

Number  of  copies. — Rule  29  of  the  supreme  court  provides- 
that 

"Ten  copies  of  the  briefs  must  be  filed  in  each  case: 
one  for  each  of  the  judges,  one  for  the  opposite  party,  one 
for  the  reporter,  and  one  to  be  filed  with  the  record."  {y) 

Rule  24  of  the  second  district  of  the  appellate  court  {z)  pro- 
vides that 

"In  addition  to  the  number  of  copies  of  abstracts,  briefs 
and  arguments  required  or  permitted  to  be  filed,  the  re- 
spective parties  shall  cause  to  be  delivered  to  the  opposite 
party,  or  his  attorney,  through  the  mail  or  otherwise,  a  copy 


{x)    1  Bradwell's  App.  Ct.  R.  35;  see  Confrey  vs.  Starh,  73  lU.  187. 
(y)    55  111.  XXV;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xi. 
[z)    1  Bradwell's  App.  Ct.  R.  35. 


686  SUPREME  AND  APPELLATE  COURTS. 

— — — _ — » 

Brief  and  Argument  —  Oral  Argument. 

of  the  printed  abstract,  brief  and  argument,  or  brief  and 
argument,  as  the  case  may  be,  on  or  before  the  day  it  is 
required  to  tile  the  same  in  this  court,  unless  the  residence 
or  address  of  such  opposite  party  or  liis  attorney  cannot 
upon  reasonable  inquiry  be  ascertained." 

Rules  23  of  the  second  and  25  of  the  third  and  fourth  dis- 
tricts of  the  appellate  court  (a)  are  as  follows: 

"Five  copies  of  the  briefs  must  be  tiled  in  each  case:  one 
for  each  of  the  judges,  one  for  the  opposite  party,  and  one 
to  be  filed  with  the  record." 

Rule  24  of  the  first  district  of  the  appellate  court  {h)  is  the 
same  as  the  above,  except  that  it  requires  six  copies  of  the 
brief  to  be  filed,  two  to  be  filed  with  the  record. 

If  the  briefs  of  counsel  in  the  citation  of  cases  from  pub- 
lished reports  fail  to  give  the  names  of  the  parties  as  required 
by  rule  28,  they  will  not  be  regarded  by  the  court.  The 
necessity  for  the  rule  is  obvious,  for  if  a  mistake  occurs  in 
referring  to  the  page,  the  case  cannot  be  readily  found,  (c) 

Printed  briefs  are  required,  whether  the  cause  is  submitted 
with  or  without  oral  argument,  or  though  written  arguments 
are  filed,  {d)  And  this  rule  applies  though  there  be  a  printed 
argument,  unless  the  points  are  clearly  and  separately  set 
down  in  the  argument,  with  the  authorities  in  support  thereof 
immediately  following,  {e) 

If  the  plaintiflf  in  error,  or  appellant,  fails  to  comply  with 
the  rule  by  filing  a  printed  brief,  the  cause  may,  in  the  dis- 
cretion of  the  court,  be  dismissed.  (/") 

Oral  argument. —  One  party  may  argue  the  case  orally, 
and  the  other  may  file  a  written  argument,   {g)     But  oral 

(a)  1  Bradwell's  App.  Ct.  R.,  35,  47,  58. 

(fc)  1  Bradwell's  App.  Ct.  R.  24. 

(c)  Smll  vs.  Stanley,  63  111.  391. 

(d)  Anonymous,  40  111.  57;  Gochenour  vs.  Mowry,  40  lU.  57. 

(e)  Gillespie  vs.  Rout,  40  111.  58. 

(/)  Holden  vs.  Herkimer,  53  111.  258. 
ig)    Bentley  vs.  Ull,  40  111.  58. 


SUPEEME  AND  APPELLATE  COURTS.  687 

Brief  and  Arguments  —  Oral  Arguments. 

argument  will  not  be  allowed  by  one  party  on  the  first  call 
of  the  docket,  and  by  the  other  on  the  second  call.  (A) 

Rule  34  of  the  supreme  court  {i)  and  rule  28  of  the  second 
district  of  the  appellate  court  {J)  are  as  follows  : 

"  Oral  argument  will  be  heard  on  the  calling  of  a  cause  upon 
the  regular  call  of  the  docket  on  behalf  of  the  appellant  or 
plaintiff  in  error,  if  he  shall  have  complied  with  the  rule 
in  regard  to  filing  printed  abstracts  and  briefs,  and  on  behalf 
of  the  appellee  or  defendant  in  error  if  he  shall  have  filed 
his  printed  brief  on  or  before  tlie  day  preceding  the  calling 
of  the  cause.*  Where  a  cause  shall  be  argued  orally  in  be- 
half of  either  party,  printed  or  written  argument  in  addition 
to  his  brief  will  not  be  received  from  such  party,  unless  the 
same  shall  have  been  filed  within  the  time  prescribed  in  this 
rule  for  the  filing  of  his  printed  brief." 

Rule  28  of  the  Jirst  district  of  the  appellate  court  {k)  is 
the  same  as  above  to  the  asterisk  (*),  and  then  continues  as 
follows : 

"Printed  or  written  arguments  on  behalf  of  either  party, 
in  addition  to  the  brief,  will  not  be  received  unless  the 
same  shall  have  been  filed  within  the  time  prescribed  by 
these  rules  for  the  filing  of  printed  briefs  by  such  party, 
except  that  the  appellant  or  plaintiff"  in  error  shall  be  at  lib- 
erty to  file  a  written  or  printed  rej^ly  at  any  time  before  the 
argument  of  the  case  is  commenced." 

Rule  31  of  the  third  district  of  the  appellate  court  {I)  is  as 
follows : 

"On  the  calling  of  a  case  for  hearing,  it  may  be  argued 
orally  if  the  rules  for  filing  abstracts  and  briefs  have 
been  complied  with,  or  the  case  may  be  submitted  on  such 

{h)  Comstock  vs.  Hitt,  40  111.  121. 

(t)  55  111.  xxvi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xi. 

Ij)  1  Bradwell's  App.  Ct.  R.  37. 

Qc)  1  Bradwell's  App.  Ct.  R.  25. 

{l)  1  Bradwell's  App.  Ct.  R.  49. 


688  SUPREME  AND  APPELLATE  COURTS. 

Abstracts  and  Briefs  —  Oral  Arguments. 

abstracts  and  briefs,  and  the  cause,  in  eitber  case,  shall  then 
be  taken  for  final  determination ;  but  in  case  the  appellant 
or  plaintiff  in  error  does  not  argue  the  case  orally,  he  shall 
be  allowed  three  days  after  the  call  to  file  a  brief  in  reply." 

Rule  29  of  the  fourth  district  of  the  appellate  court  {m) 
provides  that 

"When  any  cause  wherein  the  appellant  or  plaintiff 
in  error  shall  have  complied  .with  the  rule  in  regard  to 
filing  printed  abstracts  and  briefs  shall  be  called  on  the 
regular  call  of  the  docket,  if  either  party  shall  desire  to 
argue  the  case  orally,  then  such  case  shall  be  set  down  for 
oral  argument  on  the  day  succeeding  the  time  fixed  by  rule 
for  brief  of  appellee  or  defendant  in  error  to  be  filed,  unless 
appellee  or  defendant  in  error  shall  waive  his  right  to  argue 
the  case  orally,  in  which  event  the  apjjellant  or  plaintiff  in 
error  may  submit  an  oral  argument  on  call :  Provided^  no 
oral  argument  will  be  heard  from  the  appellee  or  defendant 
in  error  unless  he  shall  have  complied  with  the  rule  in  re- 
gard to  filing  his  brief:  Provided^  also,  oral  arguments  may 
be  heard  on  call  if  both  parties  shall  so  agree,  and  if  both 
parties  shall  have  filed  the  abstract  and  briefs  required." 

Rule  35  of  the  supreme  court  {n)  and  rule  29  of  the  second, 
32  of  the  third  and  31  of  the  fourth  districts  of  the  appellate 
court  (o)  provide  that 

"Oral  arguments  will  not  be  heard  upon  any  motion, 
nor  upon  the  rehearing  of  a  cause,  unless  specially  directed 
by  the  court." 

Time  allowed  for  oral  argument. — Rule  36  of  the  supreme 
court  {p)  and  rules  30  of  the  second,  33  of  the  third  and  31 
of  the  fourth  district  {q)  provide  that 

(m)  1  Brad  well's  App.  Ct.  R.  59. 

(n)  55  111.  xxvi;  Puterbaugh's  Com.  Law  PL  and  Pr.  xii. 

(o)  1  Bradwell's  App.  Ct.  R.  37,  49,  60. 

(p)  55  III.  xxvi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xii. 

{q)  1  Bradwell's  App.  Ct.  R.  37,  49,  60. 


SUPREME  AND  APPELLATE  COURTS.  689 

Advance  Fees  to  Clerk. 

"The  time  allowed  for  each  oral  argument  shall  be  re- 
stricted to  one  hour,  unless  otherwise  specially  permitted." 

Rule  29  of  the  first  district  of  the  appellate  court  (?•)  pro- 
vides that 

"The  time  allowed  for  each  oral  argument  upon  the 
hearing  of  a  cause  shall  be  restricted  to  one  hour,  except 
the  closing  argument,  which  shall  be  restricted  to  thirty 
minutes,  unless  otherwise  specially  permitted.  Oral  argu- 
ments will  not  be  heard  upon  any  motion,  unless  specially 
directed  by  the  court." 


SECTION  XIV. 

ADVANCE    FEES    TO    CLEEK. 

The  last  clause  of  section  12  of  the  act  in  relation  to  "  Fees 
and  Salaries,"  as  amended  by  the  act  of  1875,  (s)  provides 
that 

"The  clerk  shall  receive  an  advance  fee  of  ten  dollars 
when  the  record  is  filed,  which  shall  be  credited  on  the  fees, 
and  the  clerk  shall  repay  the  same  to  the  party  entitled 
thereto,  when  the  costs  are  collected.  The  clerk  shall  not  be 
required  to  issue  a  final  order  in  any  cause  until  all  costs  for 
which  the  party  seeking  such  final  order  is  liable,  in  such 
cause,  have  been  paid." 

Clerks  of  the  appellate  courts  are  allowed  the  same  fees  for 
services  in  the  appellate  court  as  are  allowed  for  like  services 
in  the  supreme  court,  (t) 

Rules  50  and  51  of  the  supreme  court,  adopted  at  the  Jan- 
uary term,  1875,  are  as  follows  : 

50.  "There  shall  be  advanced  by  the  party  filing  the  tran- 
script of  the  record  from  the  court  below  in  this  court,  in  any 

(r)    1  Bradwell's  App.  Ct.  R.  26. 

(s)    Laws  of  1875,  p.  79;  Rev.  Stat.  (1877)  489. 

(0    Laws  of  1877,  p.  69;  Rev.  Stat.  (1877)  322. 


690  SUPREME  AND  APPELLATE  COURTS. 

Cases  taken  from  Appellate  to  Supreme  Court. 

of  the  several  grand  divisions,  at  the  time  of  filing  the  same, 
the  sura  of  five  dollars,  and  there  shall  be  advanced  bj  the 
partj  filing  abstracts  in  any  such  cases,  at  the  filing  the  same, 
the  further  sum  of  five  dollars,  both  said  sums  to  apply  on 
account  of  the  taxable  fees  to  the  clerk. 

51.  "In  the  northern  grand  division  the  clerk  shall  not  be 
allowed  any  fee  for  abstracts,  except  the  fee  allowed  by  law 
for  filing  the  same."  (u) 

Rule  55  of  the  supreme  court,  adopted  at  the  September 
term,  1872,  {v)  provides  that 

"The  first  clause  of  rule  50  is  to  be  construed  that  the 
party  filing  the  record  shall  only  be  required  to  advance  five 
dollars  on  fees  when  a  case  is  first  placed  on  the  docket,  and 
no  additional  advanced  fees  shall  be  required  of  either  party 
if  the  case  shall  be  again  docketed  on  any  motion,  petition 
for  rehearing,  or  for  any  other  purpose." 

It  will  be  seen  that  rules  50  and  55,  so  far  as  the  amount 
of  the  advance  fees  is  concerned,  are  superseded  by  the 
statute  above  quoted,  and  that  in  all  cases  an  advance  fee  of 
ten  dollars  is  required  when  the  record  is  filed. 

For  the  taxable  fees  of  the  clerk  of  the  supreme  court  see 
Revised  Statutes  of  1877,  page  489. 


SECTION  XV. 

CASES  TAKEN  FKOM  THE  APPELLATE  TO  THE  SUPREME  COUET. 

We  have  already  seen  in  what  cases  appeals  and  writs  of 
error  may  be  prosecuted  from  the  ap23ellate  courts  to  the 
supreme  court,  {w)  In  addition  to  the  statutes  already  quoted, 
section  87  and  89  of  the  Practice  Act,  as  amended  by  act  of 
1877,  (a?)  provide  that 

{u)  55  111.  xxix;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xiv. 

(v)  56  111.  xvi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xix. 

Iw)  Ante,  p.  639;  §90  Pr.  Act,  Rev.  Stat.  (1877)  748. 

{x)  Laws  of  1877,  p.  153;  Rev.  Stat.  (1877)  746. 


SUPREME  AND  APPELLATE  COURTS.  691 

Appeals  from  Appellate  to  Supreme  Court,  etc. 

§  87.  "  If  any  final  determination  of  any  cause,  as  specified 
in  tlie  preceding  sections,  shall  be  made  by  tlie  appellate 
court,  as  the  result  wholly  or  in  part  of  the  finding  of  the 
facts  concerning  the  matter  in  controversy,  different  from 
the  finding  of  the  court  from  which  such  cause  was  brought 
by  appeal  or  writ  of  error,  it  shall  be  the  duty  of  such  appel- 
late court  to  recite  in  its  final  order,  judgment  or  decree,  the 
facts  as  found,  and  the  judgment  of  the  appellate  court  shall 
be  final  and  conclusive  as  to  all  matters  of  fact  in  contro- 
versy in  such  cause. 

§  89.  "  The  supreme  court  shall  re-examine  cases  brought 
to  it  by  appeal  or  writ  of  error  as  to  questions  of  law  only ; 
and  no  assignment  of  error  shall  be  allowed  which  shall  call 
in  question  the  determination  of  the  inferior  or  appellate 
courts  upon  controverted  questions  of  fact  in  any  case,  ex- 
cepting those  enumerated  in  the  preceding  section"  (§88). 

Manner  of  making  up  records  in  appellate  courts  and  certi- 
fying to  supreme  court. — Section  91  of  the  Practice  Act,  as 
amended  by  the  act  of  1877,  (y)  provided  that 

"It  shall  be  the  duty  of  the  supreme  court  to  direct,  by 
general  rule,  what  portions  of,  and  the  manner  in  which,  the 
records  of  the  appellate  court  shall  be  made  up  and  certified 
in  cases  removed  from  such  appellate  court  to  the  supreme 
court  by  appeal  or  writ  of  error,  except  as  otherwise  provided 
in  section  eighty-eight  (88)  aforesaid." 

By  rule  (64)  o.  the  supreme  court,  adopted  at  the  Septem- 
ber term,  1877,  iz)  it  was  provided  that 

"Pursuant  to  section  91  of  'An  act  in  regard  to  practice 
in  courts  of  record,'  approved  June  2,  1877:  Ordered  by  the 
court.  That  in  all  cases  removed  from  the  appellate  courts  to 
this  court  by  appeal  or  writ  of  error,  only  so  much  of  the 
record  shall  be  made  up  and  certified  as  shall  be  necessary 
to  clearly  and  fully  present  the  question   upon  which  the 

{y)    Laws  of  1877,  p.  154;  Rev.  Stat.  (1877)  746. 

{z)    83  111.  xi;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xvi. 


692  SUPREME  AND  APPELLATE  COURTS. 


Appeals  from  Appellate  to  Supreme  Court,  etc. 


decision  of  this  court  shall  be  sought,  and  the  same  shall  be 
directed  by  at  least  two  of  the  judges  of  the  court  from 
which  the  record  is  brought,  and  their  order  to  that  effect 
shall  be  certified  as  a  part  of  the  record." 

Rule  37  of  the  first  district  of  the  appellate  court  id)  pro- 
vided as  follows : 

''Whereas,  by  a  rule  of  the  supreme  court  it  is  ordered, 
etc.  {(.Ls  above)^  Therefore,  it  is  ordered  by  this  court  that 
the  counsel  for  the  party  desiring  to  remove  a  cause 
from  this  court  to  the  supreme  court  shall  prepare  and 
submit  to  the  counsel  for  the  opposite  party  a  draft  of 
an  order  of  this  court,  as  required  by  said  rule  of  the  su- 
preme court;  which  draft  shall  contain,  first,  a  designation 
of  the  several  j)arts  of  the  record,  including  the  final  judg- 
ment or  decree  of  the  court  below,  and  the  final  judgment 
of  this  court  necessary  to  present  clearly  and  fully  the  ques- 
tions upon  which  the  decision  of  the  supreme  court  shall 
be  sought ;  and  secondly,  the  facts  found  by  this  court  from 
the  evidence  in  the  record,  so  far  as  said  facts  are  j)erti- 
nent  to  said  questions ;  and  if  the  counsel  cannot  agree, 
they  shall,  after  reasonable  notice,  each  present  to  this  court, 
or  one  of  the  judges  thereof,  their  suggestions  in  relation 
thereto,  in  writing,  in  order  that  the  points  in  difterence,  if 
any,  may  be  fairly  settled  in  compliance  with  said  rule  of  the 
supreme  court." 

Eule  39  of  the  second  district  of  the  appellate  court  (5) 
provided  that 

' '  Whereas,  by  a  rule  of  th  e  supreme  court,  etc.  (as  above 
set  forth)  It  is  hereby  required  by  this  court  that  the  counsel 
of  appellant  or  plaintiif  in  error  shall  pre.pare  and  submit 
to  the  counsel  for  appellee  or  defendant  in  error  a  draft  of 
the  order  of  this  court,  containing  the  statement  of  facts, 
and  portions  of  the  record  only  necessary  to  present  clearly 

(a)     1  Bradwell's  App,  Ct.  R.  27. 
(6)    1  Bradwell's  App.  Ct.  R.  39. 


SUPREME  AND  APPELLATE  COUETS.  693 

Appeals  from  Appellate  to  Supreme  Court,  etc. 

and  fully  the  questions  aforesaid  ;  and  if  tlie  counsel  cannot 
agree,  they  shall,  after  reasonable  notice,  each  present  to 
this  court,  or  one  of  the  judges  thereof,  their  suggestions,  in 
writing,  in  relation  thereto,  in  order  that  the  points  in 
difference,  if  any,  may  be  fairly  settled  and  adjusted,  iq 
compliance  with  said  order  of  the  supreme  court." 

Rules  40  of  the  third  and  41  of  the  fourth  districts  of  the 
appellate  court  (c)  are  as  follows  : 

"All  parties  praying  an  appeal,  or  prosecuting  a  writ  of 
error  to  the  supreme  court,  shall  present  to  the  court  or 
judge  allowing  such  appeal,  or  in  case  of  a  writ  of  error,  to 
one  of  the  judges,  a  brief  statement  in  writing,  stating  the 
points  or  questions  he  desires  to  present  to  the  supreme 
court  for  review,  together  with  a  statement  of  the  parts  of 
the  record  he  desires  sent  up." 

Since  the  adoption  of  the  above  rules  by  the  supreme  and 
appellate  courts,  section  88  of  the  Practice  Act  was  amended 
by  the  act  of  1879,  {d)  which  provides  that 

*  *  *  "In  all  cases  of  writs  of  error  and  appeals,  prose- 
cuted or  taken  from  any  decision  of  any  of  the  aj)pellate  courts 
to  the  supreme  court,  it  shall  not  be  necessary  for  the  clerk  of 
the  appellate  court,  in  which  said  cause  was  heard  and  deter- 
mined, to  make  out  and  certify  a  copy  of  the  original  transcript 
of  the  record,  filed  in  the  said  appellate  court,  but  it  shall  be 
suflicient  for,  and  it  is  hereby  made  the  duty  of  the  clerk  of 
said  appellate  court  to  transmit  the  original  transcript  of  the 
record  filed  in  his  oflice,  with  his  official  certificate  and  seal 
of  office  authenticating  the  same,  with  a  true  and  j^erfect 
copy  of  all  the  orders  and  proceedings  appearing  of  record 
in  said  cause ;  which  said  coj^y  of  the  record,  and  proceed- 
ings duly  authenticated  with  the  seal  of  said  court,  shall  be 
transmitted  to  and  filed  in  the  supreme  court ;  and  the  clerk 
of  the  appellate  court  shall  be  entitled  to  receive  from  the 

(c)    1  Bradwell's  App.  Ct.  R.  50,  62. 

{d)    Laws  of  1879,  p.  223;  Bradwell's  ed.  169. 


694  SUPREME  AND  APPELLATE  COURTS. 

Appeals  from  Appellate  to  Supreme  Court — Judgments. 

party  procuring  said  record  and  transcript  the  fees  allowed 
by  law  for  his  certificate  and  copy  of  the  proceedings  had 
in  the  appellate  court,  and  he  shall  not  be  entitled  to  charge 
or  receive  any  fee  for  copying  or  transmitting  said  original 
transcript,  other  than  for  his  certificate,  and  the  reasonable 
cost  of  sending  said  transcript  and  record  from  his  office, 
either  by  mail  or  by  express,  to  the  clerk  of  the  supreme 
court.  That  all  laws  or  parts  of  laws  in  conflict  with  this 
act  are  hereby  repealed." 

Application  for  an  appeal  in  vacation. — Rules  39  of  the 
third  and  40  of  the  second  district  of  the  appellate  court  (<?) 
provide  that 

' '  In  all  cases  where  an  application  is  made  in  vacation 
for  an  appeal  from  this  court  to  the  supreme  court,  the 
party  making  such  application  shall  present  to  one  of  the 
judges  of  this  court  a  brief  statement  in  writing,  giving  the 
title  of  the  cause,  the  nature  and  amount  of  the  judgment, 
order  or  decree  from  which  the  appeal  is  desired,  the  date 
of  the  rendition  of  such  judgment,  order  or  decree,  and  the 
names  of  the  sureties  proposed,  accompanied  with  affidavit 
showing  the  solvency  and  sufficiency  of  the  security  so  pro- 
posed." 

SECTION  XVI. 

JUDGMENTS. 

In  all  cases  of  appeal  and  writ  of  error  the  supreme  court 
or  appellate  court  may  give  final  judgment  and  issue  execu- 
tion, or  remand  the  cause  to  the  inferior  court,  {f)  And  tlie 
said  courts,  or  a  majority  of  the  judges  thereof,  may  enter 
orders  and  judgments  in  vacation  in  all  cases  which  have  been 
argued  or  submitted  to  the  court  during  any  term  thereof, 
and  which  shall  have  been  taken  under  advisement,  {g) 

{e)     1  Bradwell's  App.  Ct.  R.  50,  62. 
(/)  Rev.  Stat.  (1877)  744. 

(g)  Rev.  Stat.  (1877)  321,  324;  see  Bills  vs.  Stanton,  69  111.  51;  Coursen 
vs.  Browning,  86  111.  57. 


SUPREME  AND  APPELLATE  COURTS.  69& 

Judgments  —  Remittitur. 

The  81st  section  of  the  Practice  Act,  as  amended  by  the 
act  of  18T7,  (A)  provides  that 

"  The  supreme  court  or  appellate  court,  in  case  of  a  partial 
reversal,  shall  give  such  judgment  or  decree  as  the  inferior 
court  ought  to  have  given,  and  for  this  purpose  may  allow  the 
entering  of  a  remittitur,  either  in  term  time  or  vacation,  or 
remand  the  cause  to  the  inferior  court  for  further  proceed- 
ings, as  the  case  may  require. ' ' 

Remittitur. — Where  the  judgment  of  the  inferior  court  is 
for  too  large  a  sum,  the  error  may  be  cured  by  a  remittitur  of 
the  excess,  {i)  and  the  judgment  be  affirmed  as  to  the  resi- 
due, and  the  costs  will  be  taxed  against  the  appellee  or  de- 
fendant in  error,  {j) 

When  the  supreme  court  or  appellate  court  has  the  power 
to  render  such  judgment  as  the  inferior  court  ought  to  have 
rendered,  it  will  do  so  without  sending  the  cause  back  for 
that  purpose,  (1")  and  a  cause  will  not  be  remanded  where 
the  proceedings  of  the  court  below  are  coram  non  judice.  {I) 

If  the  bill  of  exceptions  enables  the  court  to  ascertain  the 
sum  that  would  have  been  recovered,  if  instructions  asked 
for  had  been  given,  it  is  unnecessary  to  send  the  case  back 
for  a  new  trial,  and  judgment  will  be  rendered  for  the  proper 
amount  in  the  supreme  or  appellate  court,  {in) 

But  the  court  will  not  render  such  a  judgment  as  the  infe- 
rior court  should  have  rendered,  unless  the  evidence  on  which 
a  verdict  is  founded  is  before  it.  {n) 


(h)    Laws  of  1877,  p.  151;  Rev.  Stat.  (1877)  745. 

(0  Thomas  vs.  Fisher,  71  111.  576;  IVelsh  vs.  Johnson,  76  111.  295;  Cheeney 
vs.  Citi/  N.  Bank,  77  111.  562;   Trustees  vs.  Hihler,  85  111.  400. 

ij)  Welsh  vs.  Johnson,  76  111.  295;  Nixon  vs.  Halley,  78  111.  611;  Pixleif 
vs.  Boynton,  79  111.  351;  Convey  vs.  Sheldon,  1  Bradwell's  App.  Ct.  R.  555. 

(A-)  Prince  vs.  Lamh,  Breese,  378;  Boyle  vs.  Carter,  24  111.  49;  Lazell  vs. 
Francis,  4  Scam.  422. 

(Z)     Dutch  vs.  Edwards,  1  Scam.  127. 

(m)  Pearson  vs.  Bailey,  1  Scam.  507;  Williams  vs.  Bank  of  Illinois,  1 
Gilm.  667;  Peck  vs.  Stevens,  5  Gilm.  127. 

(n)    Howell  vs.  Barrett,  3  Gilm.  433. 


«96  SUPREME  AND  APPELLATE  COURTS. 

Judgments,  etc. —  Executions. 

Reversal — Remanding. — The  statute  which  provides  that 
no  more  than  two  new  trials  shall  be  granted  in  the  same 
case  has  special  application  to  suits  in  the  circuit  court,  and 
does  not  operate  to  restrict  the  power  of  the  supreme  or 
appellate  court  in  reversing  judgment  in  the  same  case  any 
number  of  times.  (<?) 

Special  directions. — A  cause  may  be  remanded  with  special 
directions,  and  when  this  is  done  the  inferior  court  has  no 
alternative  but  to  enter  judgment  in  conformity  there- 
with, {p) 

Effect  of  reversal. — When  a  judgment  of  the  inferior  court 
has  been  affirmed,  and  upon  a  rehearing  it  is  reversed,  such 
judgment  of  reversal  will  not  retroact  and  disturb  any  rights 
which  may  have  been  innocently  acquired  under  the  judg- 
ment of  affirmance,  and  upon  the  faith  of  it  whilst  it  was  in 
full  force.  {c[) 

SECTION  XVII. 

EXECUTIONS. 

Rule  35  of  the  first  district  of  the  appellate  court  {f)  pro- 
vides that 

"Upon  the  affirmance  of  judgments,  executions  may 
issue,  at  the  option  of  the  party,  from  this  court;  or  if 
such  party  so  elect,  a  writ  of  procedendo  shall  be  issued  to 
the  court  below,  upon  the  pajanent,  by  the  successful  party, 
of  the  costs  made  by  him  in  this  court." 


(o)  Stanberry  vs.  Moore,  56  111.  473;  see  Sllsbe  vs.  Lucas,  53  111.  479;  Wol- 
brecht  vs.  Baumgarten,  26  111.  291. 

[p)  Winchester  vs.  Grosvenor,  48  111.  515;  see  Hunter  ys.  Hatch,  45  III. 
178;  Edwards  vs.  Evans,  61  111.  492;  Thompson  vs.  Hoagland,  65  111.  310; 
Northern  Trans.  Co.  vs.  McClary,  66  111.  233;  First  Baptist  Church  vs.  An- 
dreivs,  87  111.  172. 

{q)    Montague  vs.  Wallahan,  84  111.  355;   Wadhams  vs.  Gay,  73  111.  415. 

(r)    1  Bradwell's  App.  Ct.  R.  27. 


SUPREME  AND  APPELLATE  COURTS.  697 

Judgments  —  Executions  —  Rehearing,  etc. 

Section  80  of  the  Practice  Act,  as  amended  by  the  act  of 

1877,  (.«)  provides  tliat 

"In  all  cases  of  appeal  and  writ  of  error  the  supreme 
court  or  appellate  court  may  give  final  judgment  and  issue 
execution,  or  remand  the  cause  to  the  inferior  court,  in 
order  that  an  execution  may  be  there  issued,  or  that  other 
proceedings  maybe  had  thereon.  Any  judgment  rendered 
in  the  supreme  court  or  appellate  court  shall  become  a  lien 
on  real  estate  after  execution  shall  be  issued  and  levied 
and  a  certificate  thereof  filed  in  the  office  of  the  circuit  clerk 
of  the  county  where  the  real  estate  levied  on  is  situated." 


SECTION  XVIII. 

KEHEAEING. 

Application  for — when  and  how  made. — Rules  38  and  39 
of  the  supreme  court  [t)  are  as  follows  : 

38.  "The  manner  of  applying  for  a  rehearing  shall  be  as 
follows :  Within  fifteen  days  after  an  oj)inion  is  filed  a  party 
desiring  a  rehearing  shall  give  actual  notice  in  writing  to  the 
opposite  party  or  to  his  attorney  of  his  intention  to  make 
such  application,  and  within  thirty  days  after  the  filing  of 
the  opinion  shall  place  on  file  in  the  clerk's  office  ten  printed 
•copies  of  the  petition. 

39.  "Application  for  a  rehearing  of  any  cause  shall  be 
made  by  petition  to  the  court,  signed  by  counsel,  briefly 
stating  the  grounds  for  a  rehearing  and  the  authorities  relied 
on  in  support  thereof  When  a  rehearing  is  granted,  notice 
shall  be  given  to  the  opposite  party  of  the  time  when  such 
rehearing  will  be  had." 

In  first  district  appellate  court. — Rules  31  and  32  of  the 
^first  district  {u)  provide  that 

{s)     Laws  of  1877,  p.  151;  Rev.  Stat.  (1877)  745. 

{t)     55  111.  xxvii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xii. 

(m)    1  Bradwell's  App.  Ct.  R.  26. 


698  SUPREME  AND  APPELLATE  COURTS. 

Rehearing,  etc. 


31.  "The  manner  of  applying  for  a  rehearing  shall  be  as 
follows :  Within  fifteen  days  after  a  decision  is  entered  of 
record,  party  desiring  a  rehearing  shall  give  actual  notice  in 
writing  to  the  opposite  party  or  to  his  attorney  of  his  inten- 
tion to  make  such  application,  and  within  thirty  days  after 
the  filing  of  the  opinion  shall  place  on  file  in  the  clerk's 
ofiice  six  printed  copies  of  the  petition. 

32.  "Application  for  a  rehearing  of  any  cause  shall  be 
made  by  petition  to  the  court,  signed  by  counsel,  briefly 
stating  the  grounds  for  a  rehearing  and  the  authorities  relied 
on  in  support  thereof.  All  cases  in  which  a  rehearing  has 
been  granted,  or  in  which  a  petition  thereof  is  pending,  shall 
be  placed  by  the  clerk  on  the  term  docket  in  the  order  of 
their  general  number," 

In  the  second  and  fourth  districts,  rules  32  and  33  of  the 
second  and  33  and  34  of  the  fourth  districts  {v)  provide  that 

32-33.  "Applications  for  rehearing  will  be  entertained 
in  that  class  of  cases  only  in  which  the  decision  of  this 
court  cannot  be  reviewed  by  the  supreme  court.  The  man- 
ner of  applying  for  a  rehearing  shall  be  as  follows  :  "Within 
fifteen  days  after  a  decision  shall  have  been  entered  of  record 
the  party  desiring  a  rehearing  shall  give  notice  in  writing  ta 
the  opposite  party  or  to  his  attorney  of  his  intention  to  make 
such  application,  and  within  thirty  days  after  the  entry  of 
such  decision  shall  place  on  file  in  the  clerk's  ofiice  five 
printed  copies  of  the  petition,  and  deliver  one  through  the 
mail  or  otherwise  to  the  opposite  party  or  his  attorney,  if 
the  address  of  such  party  or  his  attorney  can,  upon  reason- 
able inquiry,  be  ascertained. 

33-34.  "Applications  for  rehearing  shall  be  made  by  pe- 
tition to  the  court,  signed  by  counsel,  briefiy  stating  the 
reasons  therefor  and  the  authorities  relied  on  in  support 
thereof.  If  the  application  be  allowed,  notice  of  the  time 
when  such  rehearing  will  be  had  shall  be  given  to  the  oppo- 
site party." 

{v)    1  Bradwell's  App.  Ct.  R.  37,  38,  60,  61. 


SUPREME  AND  APPELLATE  COURTS.  699 

Rehearing  —  Stay  of  Proceedings,  etc. 


In  the  third  district. — Rules  35  and  36  of  the  third  dis- 
trict {w)  provide  tluit 

35,  "Application  for  a  reliearing  of  any  cause  shall  be 
made  by  petition  to  tlio  court,  signed  by  counsel,  briefly 
stating  the  grounds  for  a  rehearing  and  the  authorities  relied 
on  in  support  thereof.  AVhen  a  rehearing  is  granted,  notice 
shall  be  given  to  the  opposite  party  of  the  time  when  such 
rehearing  will  be  had. 

36.  "The  manner  of  applying  for  a  rehearing  shall  be  as 
follows :  Within  fifteen  days  after  a  decision  is  announced, 
a  party  applying  for  a  rehearing  shall  give  actual  notice  in 
writing  to  the  opposite  party  or  to  his  attorney  of  his  intention 
to  make  such  application,  and  within  thirty  days  after  the 
decision  is  announced  shall  .place  on  file  in  the  clerk's  oflice 
five  printed  copies  of  his  petition." 

Order  in  vacation  of  stay  of  proceedings. — Rules  40  and 
41  of  the  supreme  court  (x)  provide  : 

40.  "Any  two  of  the  justices  of  this  court  may,  in  vaca- 
tion, issue  an  order  which  shall  operate  as  a  supersedeas  in 
any  case  which  has  been  submitted  to  this  court  for  hearing 
and  judgment,  whenever  a  reargument  of  the  same  shall,  in 
their  opinion,  be  advisable. 

41.  "Where  an  opinion  in  any  case  is  filed  in  vacation, 
and  a  petition  for  a  rehearing  shall  be  presented  to  either  of 
the  justices  of  this  court,  if  he  shall  certify  that  there  is 
probable  grounds  for  granting  a  rehearing,  all  further  pro- 
ceedings authorized  by  the  judgment  of  this  court  shall  be 
stayed  until  the  next  term  of  the  court  in  the  division  in 
which  the  judgment  shall  have  been  rendered."     • 

Appellate  courts. — Rules  33  of  the  first.,  34  of  the  second^ 
37  of  the  third  and  35  of  the  fourth  districts,  respectively, 
{y)  are  the  same  as  the  40th  rule  of  the  supreme  court  above 
set  forth. 

iw)     1  Bradwell's  App.  Ct.  R.  50. 

[x)    55  111.  xxvii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xii. 

(y)    1  Bradwell's  App.  Ct.  R.  26,  38,  50,  61. 


700  SUPREME  AND  APPELLATE  COURTS. 

Rehearing  —  Stay  of  Proceedings,  etc. 

First  district. — Rule  34  of  the  first  district  {z)  provides 
that 

"TThenever  a  petition  for  a  rehearing  shall  be  presented 
to  either  of  the  justices  of  this  court  in  vacation,  if  he  shall 
certify  that  there  is  probable  grounds  for  granting  a  rehear- 
ing, all  further  proceedings  authorized  by  the  judgment  of 
this  court  shall  be  stayed  until  the  next  term  of  the  court." 

Second  .1  tJiird  and  fourth  districts. — Rules  35  of  the  second, 
38  of  the  third  and  36  of  the  fourth  districts,  respectively, 
(«)  provide  that 

"  AYhen  a  decision  shall  have  been  entered  of  record  in 
vacation,  and  a  petition  for  a  rehearing  shall  be  presented  to 
either  of  the  justices  of  this  court,  if  he  shall  certify  that 
there  is  probable  grounds  for  granting  a  rehearing,  all 
further  proceedings  authorized  by  the  judgment  of  this  court 
shall  be  stayed  until  the  next  term  of  this  court." 

Where  a  judgment  has  been  affirmed  by  the  supreme  court, 
and  a  writ  of  restitution  issued  under  it,  and  a  tenant  evicted, 
a  motion  for  a  rehearing  entered  and  a  stay-order  made  will 
not  affect  what  has  already  been  done.  (Jj) 

The  only  mode  by  which  the  final  decision  of  a  case  in  the 
supreme  court,  and  in  cases  in  the  appellate  court  where  it 
has  final  jurisdiction,  can  be  reversed  or  set  aside  at  a  subse- 
quent term,  is  by  petition  for  rehearing,  {c) 

The  time  for  filing  petitions  for  rehearing  will  be  extended 
beyond  the  limit  fixed  by  the  rules  of  the  court  only  under 
special  circumstances,  except  by  the  consent  of  the  parties. 

An  oral  motion  for  a  rehearing  is  not  necessary.  The 
filing  of  the  petition  and  docketing  the   cause,   after   due 

{z)    1  Bradwell's  App.  Ct.  R.  27. 

(a)     1  Bradwell's  App.  Ct.  R.  27,  38,  50,  61. 

(6)     Montague  vs.  WaUahan,  84  111.  355. 

(c)  HoJlowbush  vs.  McComiel,  12  111.  203. 

(d)  Mills  vs.  Lockwood,  40  111.  130;  see  Pearl  vs.  Wellman,  4  Gilm.  395; 
Selby  vs.  Hutchinson,  5  Gilm.  261;  Lampsett  vs.  Whitney,  3  Scam.  170; 
People  vs.  Pearson,  3  Scam.  405;  Delahay  vs.  McConnel,  4  Scam.  157, 


SUPREME  AND  APPELLATE  COURTS.  701 

Licensing  Attorneys  —  Examination,  etc. 

notice   given,  is   sufficient  to  bring  the  matter  before  the 
court,  {e)  ' 

Answer  to  petition. — It  is  not  consistent  with  the  uniform 
practice  of  the  court  to  receive  suggestions  or  to  permit  an 
answer  to  be  filed  to  a  petition  for  rehearing.  Shoukl  a  re- 
hearing be  granted,  then  both  parties  will  be  heard.  (/*) 
Nor  will  affidavits  be  received  upon  such  application,  or 
suggestions  be  entertained  of  a  diminution  of  the  record,  {g) 

A  rehearing  will  not  be  granted  on  new  questions  raised 
for  the  first  time  in  the  petition,  unless  it  be  to  prevent 
manifest  injustice.  (A) 


SECTION  XIX. 

LICENSING    ATTORNEYS  —  STRIKING    NAMES    FROM    THE    ROLL. 

Examination. — Rule  43  of  the  supreme  court  (?")  provides 
that 

"Every  applicant  for  license  to  practice  law  in  the  courts 
of  this  state  will  be  required  to  appear  before  the  supreme 
court,  at  one  of  its  regular  terms  in  any  of  the  grand  divi- 
sions, and  then  and  there,  in  open  court,  be  examined  by  the 
court  touching  his  qualifications  as  an  attorney  and  counselor- 
at-law,  and  shall  also,  then  and  there,  present  to  the  court  a 
certificate  from  some  court  of  record  of  the  county  in  which 
such  applicant  resides,  of  good  moral  character :  Provided^ 
however.^  it  shall  be  requisite  of  such  examination  that  such 
applicant  shall  have  pursued  a  regular  course  of  law  studies 
in  the  office  of  some  lawyer  in  general  practice,  for  at  least 
two  years,  of  which  fact  he  shall  satisfy  the  court  by  the  cer- 
tificate of  such  lawyer  and  his  own  affidavit :  Provided,  f ur- 
ic)   Anonymous,  40  111.  129. 

(/)  Anonymous,  40  111.  130. 

{g)    Boynton  vs.  Chnmplin,  40  111.  63;  McPhearson  vs.  Nelson,  44  111.  124. 

[h)    Fuller  vs.  Little,  61  111.  21. 

(t)  55  111.  xxviii;  69  111.  x;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xiii,  732; 
adopted  at  January  term,  1872,  and  amended  at  September  term,  1875. 


702  SUPREME  AND  APPELLATE  COURTS. 

Licensing  Attorneys  —  Examination. 

the7\  that  the  time  employed  at  any  law  school,  as  a  law  stu- 
dent, shall  be  considered  as  part  of  the  two  years,  of  which 
the  court  shall  be  satisfied  in  the  manner  above  specified. 
Thursday  of  the  first  week  of  each  term  shall  be  the  day  on 
which  such  examination  shall  be  had." 

By  a  rule  of  the  supreme  court,  adopted  at  the  January 
term,  1878  {j\  amended  at  January  term,  1879,  it  was 

(65)  '■'•  Ordered^  That  the  appellate  courts  in  the  several 
appellate  districts  be  authorized  to  examine  applicants  for 
admission  to  the  bar,  in  open  court,  subject  to  the  same  rules 
for  admission  to  examination  and  in  regard  to  qualifications 
as  are  applicable  to  like  admissions  and  examinations  in  this 
court,  and  that  licenses  hereafter  will  be  issued  by  the  judges 
of  this  court,  in  term  time,  on  certificates  from  such  courts, 
under  the  seal  thereof,  showing  that  the  applicants  have  been 
admitted  to  and  passed  such  examinations,  and  been  found 
entitled  to  be  admitted  to  the  bar :  Provided^  that  such  cer- 
tificates shall  be  accompanied  with  the  afiidavit  of  the  appli- 
cant, or  some  other  credible  person,  that  he  is  of  the  age  of 
twenty-one  years  or  over,  and  a  citizen  of  the  state,  and  also 
a  certified  transcript  from  a  court  of  record  in  this  state, 
showing  that  he  is  a  man  of  good  moral  character ;  but  no 
applicant  who  shall  be  rejected  shall  be  permitted  to  be 
again  examined  within  less  than  six  months  from  the  time 
of  such  rejection." 

Wlien  examined  in  a-ppellate  courts. — In  the  first  district, 
Friday-  of  the  first  week ;  second  district,  the  second  day ; 
third  district,  Tuesday  of  the  third  week  ;  and  in  the  fourth 
district,  the  second  day  of  the  term,  ijc) 

Rule  42  of  the  third  district  of  the  ajDpellate  court  provides 
that  every  applicant  for  certificate  for  qualification  for  admis- 
sion to  the  bar  by  the  supreme  court  of  this  state  will  be 
required  to  appear  before  the  court  at  one  of  its  regular  terms, 
and  then  and  there,  in  open  court,  be  examined  by  the  court 

[j)    82  111.  xi;  Puterbaugh's  Com.  Law  PL  and  Pr.  xvi. 
(t)    1  Bradwell's  App.  Ct.  R.  28;  40,  51,  62. 


\ 


SUPREME  AND  APPELLATE  COUKTS.  703 

Licensing  Attorneys  —  From  other  States. 

in  the  same  manner  and  have  the  same  certificates,  etc.,  as  pro- 
vided in  rule  43  of  the  supreme  court,  above  set  fortli.  {1} 

Withdrawal  of  certi^cates,  etc. — Rule  43  of  the  third  district 
of  the  appellate  court  (w?)  is  as  follows: 

"  Ordered^  That  each  applicant  for  examination  to  be  admit- 
ted to  the  bar,  be  permitted,  after  the  examination  is  over,  to 
withdraw  his  certificate  of  good  moral  character,  and  affidavit 
showing  that  he  is  over  twenty-one  years  of  age,  and  a  citizen 
of  the  state,  for  the  purpose  of  presenting  the  same  to  the 
supreme  court  with  his  certificate  of  examination." 

The  statute  provides  that  no  person  shall  be  refused  a  license 
to  practice  as  an  attorney  or  counselor-at-law  on  account  of 
sex.  {ii) 

Rule  41  of  the  tldrd  district  of  the  appellate  court  (c)  pro- 
vides 

"  That  the  clerk  of  this  court  be  and  he  is  hereby  allowed 
for  his  fee  for  making  out  and  certifying  under  seal  to  tlie 
supreme  court,  for  each  certificate  of  qualification  of  any  law 
student  for  admission  to  the  bar,  the  sum  of  two  dollars." 

Licensing  attorneys  from  oilier  states. — The  statute  provides 
that 

"Any  person  producing  a  license  or  other  satisfactory 
voucher  proving  that  he  hath  been  regularly  admitted  an  attor- 
ney-at-law  in  any  court  of  record  within  the  United  States,  and 
obtained  a  certificate  of  good  moral  character,  as  required  in 
the  preceding  section,  may  be  licensed  and  permitted  to  prac- 
tice as  a  counselor  and  attorney-at-law,  in  any  court  in  this 
state  without  examination."  (/;) 

Rule  44  of  the  supreme  court  {q)  provides  that 

{I)  1  Bradwell's  App.  Ct.  R.  51. 

im)  1  Bradwell's  App.  Ct.  R.  51. 

(n)  Rev.  Stat.  (1874)  169;  Rev.  Stat.  (1877)  161. 

(o)  1  Bradwell's  App.  Ct.  R.  51. 

Ip)  Rev.  Stat.  (1874)  169;  Rev.  Stat.  (1877)  161. 

{q)  55  111.  xxviii;  Puterbaugh's  Com.  Law  PL  and  Pr.  xiii. 


704  SUPREME  AND  APPELLATE  COURTS. 

Licensing  Attorneys  —  Striking  Names  from  Roll,  etc. 

"Any  application  for  admission  to  the  bar,  based  upon  a  license 
granted  in  another  state,  must  be  made  in  term  time  by  motion  of 
some  attorney  of  this  court,  made  in  open  court ;  and  no  appli- 
cant will  be  admitted  upon  such  license  without  examination^ 
except  it  appear  to  the  court,  by  affidavit  or  otherwise,  that  in 
the  state  in  which  the  license  was  issued  a  course  of  study  was 
required  at  least  equal  to  that  prescribed  in  this  state  by  the 
preceding  rule  (43),  or  the  applicant  has  been  engaged  in  active 
practice  for  a  period  of  two  years  under  such  license." 

By  whom  issued — Blank  licenses —  Clerhs''  fees. — By  rule 
45  of  the  supreme  court  (r)  it  is  provided  that: 

45.  "License  which  may  be  granted  upon  such  applica- 
tions (rules  43  and  44)  shall  be  issued  by  the  clerk  of  the 
grand  division  in  which  the  order  of  admission  shall  be 
made." 

Oath  to  l)e  taken. — Every  person  admitted  to  practice  as 
an  attorney  and  counselor-at-law  shall,  before  his  name  is 
entered  upon  the  roll  to  be  kept  as  hereinafter  provided, 
take  and  subscribe  an  oath  substantially  in  the  following 
form: 

"I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that 
I  will  support  the  Constitution  of  the  United  States  and  the 
Constitution  of  the  State  of  Illinois,  and  that  I  will  faithfully 
discharge  the  duties  of  the  office  of  attorney  and  counselor- 
at-law  to  the  best  of  my  ability." 

Roll  of  attorneys  ;  striking  names  from,  roll.,  etc. — "It  shall 
be  the  duty  of  the  clerk  of  the  supreme  court,  in  each  grand 
division,  to  make  and  keep  a  roll  or  record,  stating  at  the 
head  thereof  that  the  persons  whose  names  are  therein 
written  have  been  regularly  licensed  and  admitted  to  prac- 
tice as  attorneys  and  counselors-at-law  within  this  state,  and 
that  they  have  duly  taken  the  oath  of  office  as  prescribed 

(r)     55  111.  xxviii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xiii. 


SUPREME  AND  APPELLATE  COURTS.  705 

Attorneys  —  Striking  Names  from  Roll. 

by  law,  which  shall  be  certified  and  indorsed  upon  the  li- 
cense." (s) 

And  "No  person,  whose  name  is  not  on  the  said  roll, 
with  the  day  and  the  year  when  the  same  was  written  there- 
on, shall  be  suffered  or  admitted  to  practice  as  an  attorney 
or  counselor-at-law,  in  any  court  of  record  within  this  state ; 
and  the  justices  of  the  supreme  court,  in  open  court,  shall 
have  power  at  their  discretion  to  strike  the  name  of  any 
attorney  or  counselor-at-law  from  the  roll  for  malconduct  in 
his  office;  and  any  judge  of  a  circuit  court  or  of  the  su- 
perior court  of  Cook  county  shall,  for  like  cause,  have  power 
to  suspend  any  attorney  or  counselor-at-law  from  practice  in 
the  court  over  which  he  presides  during  such  time  as  he 
may  deem  proper,  subject  to  the  right  to  have  such  order  set 
aside  by  the  supreme  court  on  appeal."  {i) 

Refusal  to  pay  over  money  collected. — "In  all  cases  where 
an  attorney  of  any  court  in  this  state  or  solicitor  in  chancery 
shall  have  received,  or  may  hereafter  receive,  in  his  said 
office  of  attorney  or  solicitor,  in  the  course  of  collection  or 
settlement  of  any  claim  left  with  him  for  collection  or  settle- 
ment, any  money  or  other  property  belonging  to  any  client, 
and  shall,  upon  demand  made,  and  a  tender  of  his  reason- 
able fees  and  expenses,  refuse  or  neglect  to  pay  over  or  de- 
liver the  same  to  said  client,  or  to  any  person  duly  authorized 
to  receive  the  same,  it  shall  be  lawful  for  any  person  inter- 
ested to  apply  to  the  supreme  court  of  this  state  for  a  rule 
upon  the  said  attorney  or  solicitor  to  show  cause,  at  a  time  to 
be  fixed  by  the  said  court,  why  the  name  of  the  said  attorney 
or  solicitor  should  not  be  stricken  from  the  roll,  a  copy  of 
which  rule  shall  be  duly  served  upon  said  attorney  or  solicitor 
at  least  two  days  previous  to  the  day  upon  which  said  rule 
shall  be  made  returnable ;  and  if,  upon  the  return  of  said  rule,, 
it  shall  be  made  to  appear  to  the  said  court  that  such  attorneys 

(s)    Rev.  Stat.  (1874)  169;  Rev.  Stat.  (1877)  161. 

it)     Rev.  Stat.  (1874)  170;  Rev.  Stat.  (1877)  162;  see  Winkleman  vs.  The 
People,  50  111.  449;  Puterbaugh's  Com.  Law  PI.  and  Pr.  742. 


706  SUPKEME  AND  APPELLATE  COURTS. 

Striking  Names  of  Attorneys  from  Roll,  etc. 

or  solicitor  has  improperly  refused  or  neglected  to  pay  over  or 
deliver  said  money  or  property  so  demanded  as  aforesaid,  it 
shall  be  the  duty  of  the  said  court  to  direct  that  the  name  of 
the  said  attorney  or  solicitor  be  stricken  from  the  roll  of  attor- 
neys in  said  court."  (u) 

Notice  of  com^jplaint. — "  Every  attorney,  before  his  name  is 
stricken  from  the  roll,  shall  receive  a  written  notice  from  the 
clerk  of  the  supreme  court  stating  distinctly  the  grounds  of 
complaint,  or  the  charges  exhibited  against  him,  and  he  shall, 
after  such  notice,  be  heard  in  his  defense,  and  allowed  reason- 
able time  to  collect  and  prepare  testimony  fbr  his  justification. 
And  every  attorney  whose  name  shall  at  any  time  be  stricken 
from  the  roll  by  order  ot  the  court  in  manner  aforesaid  shall 
be  considered  as  though  his  name  had  never  been  written 
thereon,  until  such  time  as  the  said  justices,  in  open  court, 
shall  authorize  him  to  sign  or  subscribe  the  same."  {v) 

Information. — By  rule  62,  adopted  by  the  supreme  court 
at  the  September  term,  1876,  {w)  it  is 

''''Ordered.  In  case  an  application  shall  be  made  to  strike 
the  name  of  an  attorney  from  the  rolls,  there  shall  be  filed  an 
information  making  clear  and  specific  charges,  giving  time, 
place  and  acts  of  misconduct  with  reasonable  certaint}^,  signed 
by  the  attorney-general  or  some  state's  attorney.  When  the 
information  shall  be  deemed  sufficient  the  court  will  enter  a 
rule  to  show  cause  on  a  day  named,  and  when  the  rule  shall 
be  answered,  the  court  will  tlien  set  the  cause  for  a  hearing  on 
some  day  during  the  term,  and  will  prescribe  the  time  of  clos- 
ing proofs  by  the  respective  parties.  The  proofs  shall  be  in 
writing." 

(u)    Rev.  Stat.  (1874)  170;  Rev.  Stat.  (1877)  162. 

(v)     lb. 

(w)    79  111.  vii;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xvi. 


SUPREME  AND  APPELLATE  COURTS.  707 

Library. 


SECTION  XX. 

LIBRARY. 

Rules  47,  48  and  49  of  the  supreme  court  are  as  follows : 

47.  "  The  librarians  of  the  law  libraries  attached  to  this  court 
shall  not  permit  any  person,  except  those  authorized  by  these 
rules,  or  by  the  laws  of  the  state,  to  take  from  the  rooms  of 
this  court  any  book  or  books  belonging  to  said  libraries,  with- 
out the  consent  of  the  court  being  first  obtained  for  that  pur- 
pose ;  and  if  any  person  not  so  authorized  shall  take  away  a 
book  without  such  consent,  such  person  shall  be  considered  in 
contempt  of  the  court,  and  may  be  fined  at  the  discretion  of 
the  court. 

48.  "  Books  may  be  taken  from  the  library  in  the  central 
grand  division  upon  the  written  order  of  a  judge  of  the  United 
States  circuit  or  district  court. 

49.  "  The  books  of  the  law  libraries  shall  not  be  marked  or 
underlined  with  pen  or  pencil,  nor  shall  the  pages  of  the  same 
be  folded  down.  The  librarians  shall  adopt  such  rules  as  to 
the  safe  keeping  of  the  books  as  they  may  deem  expedient."  (x) 

{x)    55  111.  xxix;  Puterbaugh's  Com.  Law  PI.  and  Pr.  xiii. 


RULES  OF  PKACTICE  FOE  THE  COUETS  OF  EQUITY 
OF  THE  UNITED  STATES. 


Revised  and  corrected  at  Decemher  Term,  1870. 


Section  1.  Preliminaiiy  Reqitlations. 

2.  Process. 

3.  Service  of  Process. 

4.  Appearance. 

6.  Bells  taken  Pro  Conpesso. 

6.  Frame  of  Bills. 

7.  Scandal  and  Impertinence  in  BhiLB. 

8.  Amendment  op  Bills. 

9.  Demurrers  and  Pleas. 

10.  Answers. 

11.  Parties  to  Bh^ls. 

13.  Nominal  Parties  to  Bills. 

13.  Bills  op  Revivor  and  Supplement al  Bills. 

14.  Answers. 

15.  Amendment  op  Answers. 

16.  Exceptions  to  Answers. 

17.  Replication  and  Issue. 

18.  Testimony,  how  Taken. 

19.  Testimony  De  Bene  Esse. 

20.  Form  op  the  Last  Interrogatory. 

21.  Cross-Bill. 

22.  Reference  to  and  Proceedings  bepobk  Masters. 

23.  Exceptions  to  Report  op  Master. 

24.  Decrees. 

25.  Guardians  and  Prochein  Amis. 


SECTION  I. 
PJRELIMINAKY   KEGULATI0N8. 

1.  The  circuit  courts,  as  courts  of  equity,  shall  be  deemed 
always  open  for  the  purpose  of  filing  bills,  answers,  and  other 
pleadings,  for  issuing  and  returning  mesne  and  final  process 


RULES   OF  U.  S.  SUPREME   COURT.  709 

Preliminary  Regulations. 

and  commissions,  and  for  making  and  directing  all  interlocu- 
tory motions,  orders,  rules,  and  other  proceedings,  preparatory 
to  the  hearing  of  all  causes  upon  their  merits. 

2.  The  clerk's  office  shall  be  open,  and  the  clerk  shall  be  in 
attendance  therein,  on  the  first  Monday  of  every  month,  for 
the  purpose  of  receiving,  entering,  entertaining,  and  disposing 
of  all  motions,  rules,  orders,  and  other  proceedings,  which  are 
grantable  of  course,  and  applied  for,  or  had  by  the  parties,  or 
their  solicitors,  in  all  causes  pending  in  equity,  in  pursuance 
of  the  rules  hereby  prescribed. 

3.  Any  judge  of  the  circuit  court,  as  well  in  vacation  as  in 
term,  may,  at  chambers,  or  on  the  rule-days  at  the  clerk's  office, 
make  and  direct  all  such  interlocutory  orders,  rules,  and  other 
proceedings,  preparatory  to  the  hearing  of  all  causes  upon  their 
merits,  in  the  same  manner  and  with  the  same  efi'ect  as  the 
circuit  court  could  make  and  direct  the  same  in  term,  reason- 
able notice  of  the  application  therefor  being  first  given  to  the 
adverse  party,  or  his  solicitor,  to  appear  and  show  cause  to  the 
contrary  at  the  next  rule-day  thereafter,  unless  some  other  time 
is  assigned  by  the  judge  for  the  hearing. 

4.  All  motions,  rules,  orders,  and  other  proceedings  made 
and  directed  at  chambers,  or  on  rule-days  at  the  clerk's  office, 
whether  special  or  of  course,  shall  be  entered  by  the  clerk  in 
an  order-book,  to  be  kept  at  the  clerk's  office,  on  the  days  when 
they  are  made  and  directed ;  which  book  shall  be  open  at  all 
office  hours  to  the  free  inspection  of  the  parties  in  any  suit  in 
equity,  and  their  solicitors.  And,  except  in  cases  where  per- 
sonal or  other  notice  is  specially  required  or  directed,  such 
entry  in  the  order-book  shall  be  deemed  sufficient  notice  to  the 
parties  and  their  solicitors,  without  further  service  thereof,  of 
all  orders,  rules,  acts,  notices,  and  other  proceedings  entered  in 
such  order-book,  touching  any  and  all  the  matters  in  the  suits 
to  and  in  which  they  are  parties  and  solicitors.  And  notice  to 
the  solicitors  shall  be  deemed  notice  to  the  parties  for  whom 
they  appear  and  whom  they  represent,  in  all  cases  where  per- 
sonal notice  on  the  parties  is  not  otherwise  specially  required. 
Where  the  solicitors  for  all  the  parties  in  a  suit  reside  in  or  near 
the  same  town  or  city,  the  judges  of  the  circuit  court  may,  by 
rule,  abridge  the  time  for  notice  of  rules,  orders,  or  other  pro- 
ceedings not  requiring  personal  service  on  the  parties,  in  their 
discretion. 

5.  All  motions  and  applications  in  the  clerk's  office  for  the 
issuing  of  mesne  process  and  final  process  to  enforce  and  exe- 
cute decrees,  for  filing  bills,  answers,  pleas,  demurrers,  and 
other  pleadings ;  for  making  amendments  to  bills  and  answers  ; 


710  RULES   OF  U.  S.  SUPEEME   COURT. 

Process. 

for  taking  bills  pro  confesso  /  for  filing  exceptions,  and  for 
other  proceedings  in  the  clerk's  ofiice  which  do  not,  by  the 
rules  hereinafter  prescribed,  require  any  allowance  or  order  of 
the  court,  or  of  any  judge  thereof,  shall  be  deemed  motions 
and  applications,  grantable  of  course  by  the  clerk  of  the  court. 
But  the  same  may  be  suspended,  or  altered,  or  rescinded  by 
any  judge  of  the  court,  upon  special  cause  shown. 

6.  All  motions  for  rules  or  orders  and  other  proceedings, 
which  are  not  grantable  of  course,  or  without  notice,  shall, 
unless  a  difierent  time  be  assigned  by  a  judge  of  the  court,  be 
made  on  a  rule-day,  and  entered  in  the  order-book,  and  shall 
be  heard  at  the  rule-day  next  after  that  on  which  the  motion 
is  made.  And  if  the  adverse  party,  or  his  solicitor,  shall  not 
then  appear,  or  shall  not  show  good  cause  against  the  same, 
the  motion  may  be  heard  by  any  judge  of  the  court  ex  parte 
and  granted,  as  if  not  objected  to,  or  refused,  in  his  discretion. 


SECTION  II. 
PROCESS. 

7.  The  process  of  subpoena  shall  constitute  the  proper  mesne 
process  in  all  suits  in  equity,  in  the  first  instance,  to  require 
the  defendant  to  appear  and  answer  the  exigency  of  the  bill ; 
and,  unless  otherwise  provided  in  these  rules,  or  specially 
ordered  by  the  circuit  court,  a  writ  of  attachment,  and,  if  the 
defendant  cannot  be  found,  a  writ  of  sequestration,  or  a  writ 
of  assistance  to  enforce  a  delivery  of  possession,  as  the  case 
may  require,  shall  be  the  proper  process  to  issue  for  the  pur- 
pose of  compelling  obedience  to  any  interlocutory  or  final 
order  or  decree  of  the  court. 

8.  Final  process  to  execute  any  decree  may,  if  the  decree  be 
solely  for  the  payment  of  money,  be  by  a  writ  of  execution,  in 
the  form  used  in  the  circuit  court  in  suits  at  common  law  in 
actions  of  assumpsit.  If  the  decree  be  for  the  performance  of 
any  specific  act,  as,  for  example,  for  the  execution  of  a  convey- 
ance of  land  or  the  delivering  up  of  deeds  or  other  documents, 
the  decree  shall,  in  all  cases,  prescribe  the  time  within  which 
the  act  shall  be  done,  of  which  the  defendant  shall  be  bound 
without  further  service  to  take  notice ;  and  upon  afiidavit  of 
the  plaintifli',  filed  in  the  clerk's  office,  that  the  same  has  not 
been  complied  with  within  the  prescribed  time,  the  clerk  shall 
issue  a  writ  of  attachment  against  the  delinquent  party,  from 
which,  if  attached  thereon,  he  shall  not  be  discharged,  unless 


RULES   OF  U.  S.  SUPEEME   COURT.  711 

Service  of  Process. 

upon  a  full  compliance  with  the  decree  and  the  payment  of  all 
costs,  or  upon  a  special  order  of  the  court,  or  of  a  judge 
thereof,  upon  motion  and  affidavit,  enlarging  the  time  for  the 
performance  thereof.  If  the  delinquent  party  cannot  be  found, 
a  writ  of  sequestration  shall  issue  against  his  estate  upon  the 
return  of  non  est  inventus,  to  compel  obedience  to  the  decree. 

9.  When  any  decree  or  order  is  for  the  delivery  of  possession 
upon  proof  made  by  affidavit  of  a  demand  and  refusal  to  obey 
the  decree  or  order,  the  party  prosecuting  the  same  shall  be 
entitled  to  a  writ  of  assistance  from  the  clerk  of  the  court. 

10.  Every  person,  not  being  a  party  in  any  cause,  who  has 
obtained  an  order,  or  in  whose  favor  an  order  shall  have  been 
made,  shall  be  enabled  to  enforce  obedience  to  such  order  by 
the  same  process  as  if  he  were  a  party  to  the  cause ;  and  every 
person,  not  being  a  party  in  any  cause,  against  whom  obedience 
to  any  order  of  the  court  may  be  enforced,  shall  be  liable  to 
the  same  process  for  enforcing  obedience  to  such  order  as  if  he 
were  a  party  in  the  cause. 

SECTION  IIL 

SERVICE   OF    PEOCE88. 

11.  No  process  of  subpoena  shall  issue  from  the  clerk's  office 
in  any  suit  in  equity  until  the  bill  is  filed  in  the  office. 

12.  Whenever  a  bill  is  filed,  the  clerk  shall  issue  the  process 
of  subpoena  thereon,  as  of  course,  upon  the  application  of  the 
plaintiff,  which  shall  be  returnable  into  the  clerk's  office  the 
next  rule-day,  or  the  next  rule-day  but  one,  at  the  election  of 
the  plaintiff,  occurring  after  twenty  days  from  the  time  of  the 
issuing  thereof  At  tlie  bottom  of  the  subpoena  sliall  be  placed 
a  memorandum,  that  the  defendant  is  to  enter  his  appearance 
in  the  suit  in  the  clerk's  office  on  or  before  the  day  at  which 
the  writ  is  returnable ;  otherwise  the  bill  may  be  taken  j^o 
confesso.  Where  there  are  more  than  one  defendant,  a  writ 
of  subpoena  may,  at  the  election  of  the  plaintiff',  be  sued  out 
separately  for  each  defendant,  except  in  the  case  of  husband 
and  wife  defendants,  or  a  joint  subpoena  against  all  the  defend- 
ants. 

13.  The  service  of  all  subpoenas  shall  be  by  a  delivery  of  a 
copy  thereof  by  the  officer  serving  the  same  to  the  defendant 
personally,  or,  in  case  of  husband  and  wife,  to  the  husband 
personally,  or  by  leaving  a  copy  thereof  at  the  dwelling-house 
or  usual  place  of  abode  of  each  defendant,  with  some  free 
white  person  who  is  a  member  or  resident  in  the  family. 


712  KULES   OF  U.  S.  SUPEEME   COURT. 

Appearance  —  Bills  taken  Pro  Confesso.    * 


14.  Whenever  any  subpoena  shall  be  returned  not  executed 
as  to  any  defendant,  the  plaintiff  shall  be  entitled  to  another 
subpojna,  toties  quoties,  against  such  defendant,  if  he  shall 
require  it,  until  due  service  is  made. 

15.  The  service  of  all  process,  mesne  and  final,  shall  be  by 
the  marshal  of  the  district,  or  his  deputy,  or  by  some  other 
person  specially  appointed  by  the  court  for  that  purpose,  and 
not  otherwise.  In  the  latter  case,  the  person  serving  the  pro- 
cess shall  make  aflSdavit  thereof. 

16.  Upon  the  return  of  the  subpoena  as  served  and  executed 
upon  any  defendant,  the  clerk  shall  enter  the  suit  upon  his 
docket  as  pending  in  the  court,  and  shall  state  the  time  of  the 
€ntry. 

SECTION  IV. 

APPEAJBA2TCE. 

17.  The  appearance-day  of  the  defendant  shall  be  the  rule- 
day  to  which  the  subpoena  is  made  returnable,  provided  he  has 
been  served  with  the  process  twenty  days  before  that  day; 
otherwise  his  appearance-day  shall  be  the  next  rule-day  suc- 
ceeding the  rule-day  when  the  process  is  returnable. 

The  appearance  of  the  defendant,  either  personally  or  by 
his  solicitor,  shall  be  entered  in  the  order-book  on  the  day 
thereof  by  the  clerk. 

SECTION  V. 
BILLS    TAKEN    PRO    CONFESSO. 

18.  It  shall  be  the  duty  of  the  defendant,  unless  the  time 
shall  be  otherwise  enlarged,  for  cause  shown,  by  a  judo-e  of 
the  court,  upon  motion  for  that  purpose,  to  file  his  plea,  de- 
murrer, or  answer  to  the  bill,  in  the  clerk's  office,  on  the  rule- 
day  next  succeeding  that  of  entering  his  appearance.  In 
default  thereof,  the  plaintiff  may,  at  his  election,  enter  an  order 
(as  of  course)  in  the  order  book,  that  the  bill  be  taken  pro 
confesso  J  and  thereupon  the  cause  shall  be  proceeded  in  ex 
parte,  and  the  matter  of  the  bill  may  be  decreed  by  the  court 
at  the  next  ensuing  term  thereof  accordingly,  if  the  same  can 
be  done  without  an  answer,  and  is  proper  to  be  decreed  ;  or  the 
plaintiff",  if  he  requires  any  discovery  or  answer  to  enable  him 
to  obtain  a  proper  decree,  shall  be  entitled  to  jM-ocess  of  attach- 
ment against   the  defendant,  to    compel   an   answer,   and   the 


KULES   OF  U.  S.  SUPREME   COURT.  713 

Frame  of  Bills. 

defendant  shall  not,  when  arrested  upon  such  process,  be  dis- 
charged tlierefrom  unless  upon  filing  his  answer,  or  otherwise 
complying  with  such  order  as  the  court  or  a  judge  thereof  may 
direct,  as  to  pleading  to  or  fully  answering  the  bill,  within  a 
period  to  be  fixed  by  the  court  or  judge,  and  undertaking  to 
speed  the  cause. 

19.  When  the  bill  is  taken  ^;>r6>  confesso^  the  court  may  pro- 
ceed to  a  decree  at  the  next  ensuing  term  thereof,  and  such 
decree  rendered  shall  be  deemed  absolute,  unless  the  court  shall, 
at  the  same  terra,  set  aside  the  same,  or  enlarge  the  time  for 
filing  the  answer,  upon  cause  shown  upon  motion  and  affidavit 
•of  the  defendant.  And  no  such  motion  shall  be  granted,  unless 
upon  the  payment  of  the  costs  of  the  plaintiff"  in  the  suit  up  to 
that  time,  or  such  part  thereof  as  the  court  shall  deem  reasona- 
ble, and  unless  the  defendant  shall  undertake  to  file  his  answer 
within  such  time  as  the  court  shall  direct,  and  submit  to  such 
other  terms  as  the  court  shall  direct,  for  the  purpose  of  speeding 
the  cause. 

SECTION  VI. 
FKAME   OF    BILLS. 

20.  Every  bill,  in  the  introductory  part  thereof,  shall  contain 
the  names,  places  of  abode,  and  citizenship  of  all  the  parties, 
plaintiffs  and  defendants,  by  and  against  whom  the  bill  is 
t)rought.  The  form,  in  substance,  shall  be  as  follows  :  "  To  the 
"judges  of  the  Circuit  Court  of  the  United  States  for  the  district 

of :  A.  B.,  of ,  and  a  citizen  of  the  State  of ,  brings 

this  his  bill  against  C.  D.,  of ,  and  a  citizen  of  the  State  of 

,  and  E.  F.,  of ,  and  a  citizen  of  the  State  of .    And 

thereupon  your  orator  complains  and  says,  that,"  etc. 

21.  The  plaintiff,  in  his  bill,  shall  be  at  liberty  to  omit,  at 
his  option,  the  part  which  is  usually  called  the  common  confede- 
racy clause  of  the  bill,  averring  a  confederacy  between  the 
defendants  to  injure  or  defraud  the  plaintiff;  also  what  is  com- 
monly called  the  charging  part  of  the  bill,  setting  forth  the 
matters  or  excuses  which  the  defendant  is  supposed  to  intend 
to  set  up  by  way  of  defense  to  the  bill ;  also  what  is  commonly 
■called  the  jurisdiction  clause  of  the  bill,  that  the  acts  com- 
plained of  are  contrary  to  equity,  and  that  the  defendant  is  with- 
out any  remedy  at  law ;  and  the  bill  shall  not  be  demurrable 
therefor.  And  the  plaintiff  may,  in  the  narrative  or  stating 
part  of  his  bill,  state  and  avoid,  by  counter-averments,  at  his 
•option,  any  matter  or  thing  which  he  supposes  will  be  insisted 


714  RULES   OF  U.  S.  SUPREME   COURT. 

Scandal  and  Impertinence  in  Bills. 

upon  by  tlie  defendant,  by  way  of  defense  or  excuse,  to  the  case 
made  by  the  plaintiff  for  relief.  The  prayer  of  the  bill  shall 
ask  the  special  relief  lu  which  the  plaintiff  supposes  himself 
entitled,  and  also  shall  contain  a  prayer  for  general  relief;  and 
if  an  injunction,  or  a  writ  of  7ie  exeat  regno,  or  any  other 
special  order  pending  the  suit  is  required,  it  shall  also  be 
specially  asked  for. 

22.  If  any  persons,  other  than  those  named  as  defendants  in 
the  bill,  shall  appear  to  be  necessary  or  proper  parties  thereto, 
the  bill  shall  aver  the  reason  why  they  are  not  made  parties, 
by  showing  them  to  be  without  the  jurisdiction  of  the  court, 
or  that  they  cannot  be  joined  without  ousting  the  jurisdiction 
of  the  court  as  to  the  other  parties.  And  as  to  persons  who 
are  without  the  jurisdiction  and  may  properly  be  made  parties, 
the  bill  may  pray  that  process  may  issue  to  make  them  parties  to 
the  bill,  if  they  should  come  within  the  jurisdiction. 

23.  The  prayer  for  process  of  subpoena  in  the  bill  shall  con- 
tain the  names  of  all  the  defendants  named  in  the  introductory 
part  of  the  bill,  and  if  any  of  them  are  known  to  be  infants 
under  age,  or  otherwise  under  guardianship,  shall  state  the  fact, 
60  that  the  court  may  take  order  thereon  as  justice  may  require, 
upon  the  return  of  the  process.  If  an  injunction,  or  a  writ  of 
ne  exeat  regno,  or  any  other  special  order  pending  the  suit,  is 
asked  for  in  the  prayer  for  relief,  that  shall  be  sufficient  without 
repeating  the  same  in  the  prayer  for  process. 

24.  Every  bill  shall  contain  the  signature  of  counsel  annexed 
to  it,  which  shall  be  considered  as  an  affirmation  on  his  part,, 
that  upon  the  instructions  given  to  him,  and  the  case  laid  be- 
fore him,  there  is  good  ground  for  the  suit,  in  the  manner  iu 
which  it  is  framed. 

25.  In  order  to  prevent  unnecessary  costs  and  expenses,  and 
to  promote  brevity,  succinctness,  and  directness  in  the  allega- 
tions of  bills  and  answers,  the  regular  taxable  costs  for  every 
bill  and  answer  shall  in  no  case  exceed  the  sum  which  is  allowed 
in  the  state  court  of  chancery  in  the  district,  if  any  there  be ; 
but  if  there  be  none,  then  it  shall  not  exceed  the  sum  of  three 
dollars  for  every  bill  or  answer. 


SECTION  VII. 
SCANDAL    AND    IMPERTINENCE    IN    BILLS. 

26.  Every  bill  shall  be  expressed  in  as  brief  and  succinct 
terms  as  it  reasonably  can  be,  and  shall  contain  no  unnecessary 
recitals  of  deeds,  documents,  contracts,  or  other  instruments,  in 


EULES   OF  U.  S.  SUPREME   COURT.  715 

Amendment  of  Bills. 

h(EG  verba,  or  any  other  impertinent  matter,  or  any  scandalous 
matter  not  relevant  to  the  suit.  If  it  does,  it  may  on  excep- 
tions be  referred  to  a  iiiaster  by  any  jndge  of  the  court  for  im- 
pertinence or  scandal ;  and  if  so  found  by  him,  the  matter  shall 
be  expunged  at  the  expense  of  the  plaintiff,  and  he  shall  pay  to 
the  defendant  all  his  costs  in  the  suit  up  to  that  time,  unless 
the  court,  or  a  judge  thereof  shall  otherwise  order.  If  the 
master  shall  report  that  the  bill  is  not  scandalous  or  imperti- 
nent, the  plaintiff  shall  be  entitled  to  all  costs  occasioned  by 
the  reference. 

27.  No  order  shall  be  made  by  any  judge  for  referring  any 
bill,  answerer  pleading,  or  other  matter,  or  proceeding  depend- 
ing, before  the  court  for  scandal  or  impertinence,  unless  excep- 
tions are  taken  in  writing  and  signed  by  counsel,  describing 
the  particular  passages  which  are  considered  to  be  scandalous 
or  impertinent ;  nor  unless  the  exceptions  shall  be  filed  on  or 
before  the  next  rule-day  after  the  process  on  the  bill  shall  be 
returnable,  or  after  the  answer  or  pleading  is  filed.  And  such 
order,  when  obtained,  shall  be  considered  as  abandoned,  unless 
the  party  obtaining  the  order  shall,  without  any  unnecessary 
delay,  procure  the  master  to  examine  and  report  for  the  same 
on  or  before  the  next  succeeding  rule-day,  or  the  master  shall 
certify  that  further  time  is  necessary  for  him  to  complete  the 
examination. 

SECTION  VIII. 
AMENDMENT    OF   BILLS. 

28.  The*  plaintiff  shall  be  at  liberty,  as  a  matter  of  course, 
and  without  payment  of  costs,  to  amend  his  bill  in  any  matters 
whatsoever,  before  any  copy  has  been  taken  out  of  the  clerk's 
office,  and  in  any  small  matters  afterward,  such  as  filling 
blanks,  correcting  errors  of  dates,  misnomer  of  parties,  misde- 
scription of  premises,  clerical  errors,  and  generally  in  matters 
of  form.  But  if  he  amend  in  a  material  point,  (as  he  may  do 
of  course,)  after  a  copy  has  been  so  taken,  before  any  answer  or 
plea,  or  demurrer  to  tlie  bill,  he  shall  pay  to  the  defendant  the 
costs  occasioned  thereby,  and  shall,  without  delay,  furnish 
him  a  fair  copy  thereof,  free  of  expense,  with  suitable  refer- 
ences to  the  places  where  the  same  are  to  be  inserted.  And  if 
the  amendments  are  numerous,  he  shall  furnish  in  like  manner 
to  the  defendant,  a  copy  of  the  whole  bill  as  amended ;  and  if 
there  be  more  than  one  defendant,  a  copy  shall  be  furnished  to 
each  defendant  affected  thereby. 


716  RULES   OF  U.  S.  SUPREME   COURT. 

Demurrers  and  Pleas. 

29.  After  an  answer  or  plea  or  demurrer  is  put  in,  and  before 
replication,  the  plaintiff  may,  upon  motion  or  petition,  without 
notice,  obtain  an  order  from  any  judge  of  the  court  to  amend 
his  bill  on  or  before  the  next  succeeding  rule-day,  upon  pay- 
ment of  costs  or  without  payment  of  costs,  as  the  court  or  a 
judge  thereof  may  in  his  discretion  direct.  But  after  replica- 
tion filed,  the  plaintiff  shall  not  be  permitted  to  withdraw  it 
and  to  amend  his  bill,  except  upon  a  special  order  of  a  judge 
of  the  court,  upon  motion  or  petition,  after  due  notice  to  the 
other  party,  and  upon  proof  by  affidavit  that  the  same  is  not 
made  for  the  purpose  of  vexation  or  delay,  or  that  the  matter 
of  the  proposed  amendment  is  material,  and  could  not  with 
reasonable  diligence  have  been  sooner  introduced  into  the  bill, 
and  upon  the  plaintiff's  submitting  to  such  other  terms  as  may 
be  imposed  by  the  judge  for  speeding  the  cause. 

30.  If  the  plaintifi",  so  obtaining  any  order  to  amend  his  bill 
after  answer,  or  plea,  or  demurrer,  or  after  replication,  shall  not 
file  his  amendments  or  amended  bill,  as  the  case  may  require. 
in  the  clerk's  ofiice,  on  or  before  the  next  succeeding  rule-day, 
he  shall  be  considered  to  have  abandoned  the  same,  and  the 
cause  shall  proceed  as  if  no  application  for  any  amendment  had 
been  made. 

SECTION  IX. 

DEMUKEEE8   AND    PLEAS. 

31.  No  demurrer  or  plea  shall  be  allowed  to  be  filed  to  any 
bill,  unless,  upon  a  certificate  of  counsel  that  in  his  opinion  it 
is  well  founded  in  point  of  law,  and  supported  by  the  affidavit 
of  the  defendant  that  it  is  not  interposed  for  delay ;  and  if  a 
plea,  that  it  is  true  in  point  of  fact. 

32.  The  defendant  may,  at  any  time  before  the  bill  is  taken 
for  confessed,  or  afterward,  with  the  leave  of  the  court,  demur 
or  plead  to  the  whole  bill  or  part  of  it,  and  he  may  demur  to 
part,  plead  to  part,  and  answer  as  to  the  residue;  but  in  every 
case  in  which  the  bill  specially  charges  fraud  or  combination,  a 
plea  to  such  part  must  be  accompanied  with  an  answer  fortify- 
ing the  plea,  and  explicitly  denying  the  fraud  and  combination, 
and  the  facts  on  which  the  charge  is  founded. 

33.  The  plaintiff'  may  set  down  the  demurrer  or  plea  to  be 
argued,  or  he  may  take  issue  on  the  plea.  If,  upon  an  issue, 
the  facts  stated  in  the  plea  be  determined  for  the  defendant, 
they  shall  avail  him  as  far  as  in  law  and  equity  they  ought  to 
avail  him. 


RULES  OF  U.  S.  SUPREME   COURT.  717 

Answers. 

34.  If,  upon  the  hearing,  any  demurrer  or  plea  is  overruled, 
the  plaintiff  shall  be  entitled  to  his  costs  in  the  cause  up  to  that 
period,  unless  the  court  shall  be  satisfied  that  the  defendant  has 
good  ground  in  point  of  law  or  fact  to  interpose  the  same,  and 
it  was  not  interposed  vexatiously  or  for  delay.  And  upon  the 
overruling  of  any  plea  or  demurrer,  the  defendant  shall  be 
assigned  to  answer  the  bill,  or  so  much  thereof  as  is  covered  by 
the  plea  or  demurrer,  the  next  succeeding  rule-day,  or  at  such 
other  period  as,  consistently  with  justice  and  the  rights  of  the 
defendant,  the  same  can,  in  the  judgment  of  the  court,  be  rea- 
sonably done ;  in  default  whereof,  the  bill  shall  be  taken  against 
him  jpro  confesso,  and  the  matter  thereof  proceeded  in  and 
decreed  accordingly. 

35.  If,  upon  the  hearing,  any  demurrer  or  plea  shall  be 
allowed,  the  defendant  shall  be  entitled  to  his  costs.  But  the 
court  may,  in  its  discretion,  upon  motion  of  the  plaintiff,  allow 
him  to  amend  his  bill  upon  such  terms  as  it  shall  deem  reason- 
able. 

36.  No  demurrer  or  plea  shall  be  held  bad  and  overruled 
upon  argument,  only  because  such  demurrer  or  plea  shall  not 
cover  so  much  of  the  bill  as  it  might  by  law  have  extended  to. 

37.  No  demurrer  or  plea  shall  be  held  bad  and  overruled 
upon  argument,  only  because  the  answer  of  the  defendant  may 
extend  to  some  part  of  the  same  matter  as  may  be  covered  by 
such  demurrer  or  plea. 

38.  If  the  plaintiff  shall  not  reply  to  any  plea,  or  set  down  any 
plea  or  demurrer  for  argument,  on  the  rule-day  when  the  same 
is  filed,  or  on  the  next  succeeding  rule-day,  he  shall  be  deemed 
to  admit  the  truth  and  sufficiency  thereof,  and  his  bill  shall  be 
dismissed  as  of  course,  unless  a  judge  of  the  court  shall  allow 
him  further  time  for  the  purpose. 


SECTION  X. 

A2T8WEKB. 

39.  The  rule  that  if  a  defendant  submits  to  answer  he  shall 
answer  fully  to  all  the  matters  of  the  bill,  shall  no  longer 
apply  in  cases  where  he  might  by  plea  protect  himself  from 
such  answer  and  discovery.  And  the  defendant  shall  be 
entitled  in  all  cases  by  answer  to  insist  upon  all  matters  of 
defense  (not  being  matters  of  abatement,  or  to  the  character  of 
the  parties,  or  matters  of  form)  in  bar  of  or  to  the  merits  of 
the  bill,  of  which  he  may  be  entitled  to  avail  himself  by  a  plea 


718  EULES   OF  U.  S.  SUPREME  COUET. 

Answers. 

in  bar;  and  in  such  answer  he  shall  not  be  compellable  to 
answer  any  other  matters  than  he  would,  be  compellable  to 
answer  and  discover  upon  filing  a  plea  in  bar,  and  an  answer 
in  support  of  such  plea,  touching  the  matters  set  forth  in  the 
bill,  to  avoid  or  repel  the  bar  or  defense.  Thus,  for  example, 
a  hona  jide  purchaser  for  a  valuable  consideration,  without 
notice,  may  set  up  that  defense  by  way  of  answer  instead  of 
plea,  and  shall  be  entitled  to  the  same  protection,  and  shall  not 
be  compellable  to  make  any  further  answer  or  discovery  of  his 
title  than  he  would  be  in  any  answer  in  support  of  such  plea. 

40.  A  defendant  shall  not  be  bound  to  answer  any  statement 
or  charge  in  the  bill,  unless  specially  and  particularly  interro- 
gated thereto ;  and  a  defendant  shall  not  be  bound  to  answer 
any  interrogatory  in  the  bill,  except  those  interrogatories  which 
such  defendant  is  required  to  answer ;  and  where  a  defendant 
shall  answer  any  statement  or  charge  in  the  bill,  to  which  he 
is  not  interrogated,  only  by  stating  his  ignorance  of  the  matter 
60  stated  or  charged,  such  answer  shall  be  deemed  impertinent 

December  Term,^  1850. 

Ordered,  That  the  fortieth  rule  heretofore  adopted  and  pro- 
mulgated by  this  court  as  one  of  the  rules  of  practice  in  suits 
in  equity  in  the  circuit  courts  be,  and  the  same  is  hereby, 
repealed  and  annulled.  And  it  shall  not  hereafter  be  neces- 
sary to  interrogate  a  defendant  specially  and  particularly  upon 
any  statement  in  the  bill,  unless  the  complainant  desires  to  do 
so,  to  obtain  a  discovery. 

41.  The  interrogatories  contained  in  the  interrogating  part 
of  the  bill  shall  be  divided  as  conveniently  as  may  be  from 
each  other,  and  numbered  consecutively  1,  2,  3,  etc. ;  and  the 
interrogatories  which  each  defendant  is  required  to  answer 
shall  be  specified  in  a  note  at  the  foot  of  the  bill,  in  the  form 
or  to  the  effect  following,  that  is  to  say :  "  The  defendant 
(A.  B.)  is  required  to  answer  the  interrogatories  numbered 
respectively  1,  2,  3,  etc. ; "  and  the  office  copy  of  the  bill  taken 
by  each  defendant  shall  not  contain  any  interrogatories  except 
those  which  such  defendant  is  so  required  to  answer,  unless 
such  defendant  shall  require  to  be  furnished  with  a  copy  of  the 
whole  bill. 

42.  The  note  at  the  foot  of  the  bill,  specifying  the  inter- 
rogatories which  each  defendant  is  required  to  answer,  shall  be 
considered  and  treated  as  part  of  the  bill,  and  the  addition  of 
any  such  note  to  the  bill,  or  any  alteration  in  or  addition  to 
Buch  note  after  the  bill  is  filed,  shall  be  considered  and  treated 
as  an  amendment  of  the  bill. 


RULES   OF  U.  S.  SUPREME   COURT.  719 

Parties  to  Bills. 

43.  Instead  of  the  words  of  the  bill  now  in  use,  preceding 
the  interrogating  part  thereof,  and  beginning  with  the  words 
*'  To  the  end,  therefore,"  there  shall  hereafter  be  used  words  in 
the  form  or  to  the  effect  following:  "To  the  end,  therefore, 
that  the  said  defendants  may,  if  they  can,  show  why  your 
orator  should  not  have  the  relief  hereby  prayed,  and  may,  upon 
their  several  and  respective  corporal  oaths,  and  according  to 
the  best  and  utmost  of  their  several  and  respective  knowledge, 
remembrance,  information,  and  belief,  full,  true,  direct  and  per- 
fect answer  make  to  such  of  the  several  interrogatories  herein- 
after numbered  and  set  forth,  as  by  the  note  hereunder  written 
they  are  respectively  required  to  answer,  that  is  to  say : 

"  1.  Whether,  etc. 
"  2.  Whether,  etc." 

44.  A  defendant  shall  be  at  liberty,  by  answer,  to  decline 
answering  any  interrogatory,  or  part  of  an  interrogatory,  from 
answering  which  he  might  have  protected  himself  by  demurrer ; 
and  he  shall  be  at  liberty  so  to  decline,  notwithstanding  he 
shall  answer  other  parts  of  the  bill  from  which  he  might  have 
protected  himself  by  demurrer. 

45.  No  special  replication  to  any  answer  shall  be  filed.  But 
if  any  matter  alleged  in  the  answer  shall  make  it  necessary  for 
the-plaintiif  to  amend  his  bill,  he  may  have  leave  to  amend  the 
same  with  or  without  the  payment  of  costs,  as  the  court,  or  a 
judge  thereof,  may  in  his  discretion  direct. 

46.  In  every  case  where  an  amendment  shall  be  made  after 
answer  filed,  the  defendant  shall  put  in  a  new  or  supplemental 
answer,  on  or  before  the  next  succeeding  rule-day  after  that  on 
which  the  amendment  or  amended  bill  is  filed,  unless  the  time 
is  enlarged  or  otherwise  ordered  by  a  judge  of  the  court ;  and 
upon  his  default  the  like  proceedings  may  be  had  as  in  cases 
of  an  omission  to  put  in  an  answer. 


SECTION  XI. 

PARTIES    TO    BILLS. 

47.  In  all  cases  where  it  shall  appear  to  the  court  that  per 
sons  who  might  otherwise  be  deemed  necessary  or  proper 
parties  to  the  suit,  cannot  be  made  parties  by  reason  of  their 
being  out  of  the  jurisdiction  of  the  court,  or  incapable  other- 
wise of  being  made  parties,  or  because  their  joinder  would 
oust  the  jurisdiction  of  the  court  as  to  the  parties  before  the 
court,  the  court  may,  in  their  discretion,  proceed  in  the  cause 
without  making  such  persons  parties;  and  in  such  cases  the 


720  RULES   OF  U.  S.  SUPREME   COURT. 

Parties  to  Bills. 

decree  shall  be  without  prejudice  to  the  rights  of  the  absent 
parties. 

4:8.  Where  the  parties  on  either  side  are  very  numerous,  and 
cannot,  without  manifest  inconvenience  and  oppressive  delays 
in  the  suit,  be  all  brought  before  it,  the  court  in  its  discretion 
may  dispense  with  making  all  of  them  parties,  and  may  pro- 
ceed in  the  suit,  having  sufficient  parties  before  it  to  represent 
all  the  adverse  interests  of  the  plaintiffs  and  the  defendants  in 
the  suit  properly  before  it.  But  in  such  cases  the  decree  shall 
be  without  prejudice  to  the  rights  and  claims  of  all  the  absent 
parties. 

49.  In  all  suits  concerning  real  estate  which  is  vested  in. 
trustees  by  devise,  and  such  trustees  are  competent  to  sell  and 
give  discharges  for  the  proceeds  of  the  sale,  and  for  the  rents 
and  profits  of  the  estate,  such  trustees  shall  represent  the  per- 
sons beneficially  interested  in  the  estate,  or  the  proceeds,  or 
the  rents  and  profits,  in  the  same  manner  and  to  the  same 
extent,  as  the  executors  or  administrators  in  suits  concerning 
personal  estate  represent  the  persons  beneficially  interested 
in  such  personal  estate ;  and  in  such  cases  it  shall  not  be  neces- 
sary to  make  the  persons  beneficially  interested  in  such  real 
estate,  or  rents  and  profits,  parties  to  the  suit ;  but  the  court 
may,  upon  consideration  of,  the  matter  on  the  hearing,  if  it 
shall  so  think  fit,  order  such  persons  to  be  made  parties. 

50.  In  suits  to  execute  the  trusts  of  a  will,  it  shall  not  be 
necessary  to  make  the  heir-at-law  a  party;  but  the  plaintiff 
shall  be  at  liberty  to  make  the  heir-at-law  a  party  where  he 
desires  to  have  the  will  established  against  him. 

51.  In  all  cases  in  which  the  plaintiff  has  a  joint  and  several 
demand  against  several  persons,  either  as  principals  or  sureties, 
it  shall  not  be  necessary  to  bring  before  the  court  as  parties  ta 
a  suit  concerning  such  demand,  all  the  persons  liable  thereto ; 
but  the  plaintiff  may  proceed  against  one  or  more  of  the 
persons  severally  liable. 

52.  "Where  the  defendant  shall,  by  his  answer,  suggest  that 
the  bill  is  defective  for  want  of  parties,  the  plaintiff  shall  be  at 
Irberty,  within  fourteen  days  after  answer  filed,  to  set  down 
the  cause  for  argument  upon  that  objection  only ;  and  the  pur 
pose  for  which  the  same  is  so  set  down  shall  be  notified  by  an 
entry,  to  be  made  in  the  clerk's  order  book,  in  the  form  or  to 
the  efi'ect  following,  (that  is  to  say,)  "  Set  down  upon  the 
defendant's  objection  for  want  of  parties."  And  where  the 
plaintiff  shall  not  so  set  down  his  cause,  but  shall  proceed 
therewith  to  a  hearing,  notwithstanding  an  objection  for  want 
of  parties  taken  by  the  answer,  he  shall  not,  at  the  hearing  of 
the  cause,  if  the  defendant's  obiection  shall  then  be  allowed. 


RULES  OF  TJ.  S.  SUPREME   COURT.  721 

Nominal  Parties  to  Bills  —  Bills  of  Revivor  and  Supplemental  Bills. 

be  entitled  as  of  course  to  an  order  for  liberty  to  amend  his 
bill  by  adding  parties.  But  the  court,  if  it  thinks  fit,  shall  be 
at  liberty  to  dismiss  the  bill. 

53.  If  a  defendant  shall,  at  the  hearing  of  a  cause,  object 
that  a  suit  is  defective  for  want  of  parties  not  having  by  plea 
or  answer  taken  the  objection,  and  therein  specified  by  name  or 
description  the  parties  to  •whom  the  objection  applies,  the  court 
{if  it  shall  think  fit)  shall  be  at  liberty  to  make  a  decree  sav- 
ing the  rights  of  the  absent  parties. 


SECTION  XII. 
NOMINAL   PARTIES   TO   BILLS. 

54.  Where  no  account,  payment,  conveyance,  or  other  direct 
relief  is  sought  against  a  party  to  a  suit,  not  being  an  infant, 
the  party,  upon  service  of  the  subpoena  upon  him,  need  not 
appear  and  answer  the  bill,  unless  the  plaintiff  specially 
requires  him  so  to  do  by  the  prayer  of  his  bill ;  but  he  may 
appear  and  answer  at  his  option ;  and  if  he  does  not  appear 
and  answer  he  shall  be  bound  by  all  the  proceedings  in  the 
cause.  If  the  plaintiff  shall  require  him  to  appear  and  answer, 
he  shall  be  entitled  to  the  costs  of  all  the  proceedings  against 
him,  unless  the  court  shall  otherwise  direct. 

55.  Whenever  an  injunction  is  asked  for  by  the  bill  to  stay 
proceedings  at  law,  if  the  defendant  do  not  enter  his  appear- 
ance and  plead,  demur  or  answer  to  the  same  within  the  time 
prescribed  therefor  by  these  rules,  the  plaintiff  shall  be  entitled, 
as  of  course,  upon  motion  without  notice,  to  such  injunction. 
But  special  injunctions  shall  be  grantable  only  upon  due  notice 
to  the  other  party  by  the  court  in  term,  or  by  a  judge  thereof 
in  vacation,  after  a  hearing,  which  may  be  ex  parte,  if  the 
adverse  party  does  not  appear  at  the  time  and  place  ordered. 
In  every  case  where  an  injunction,  either  the  common  injunc- 
tion or  a  special  injunction,  is  awarded  in  vacation,  it  shall, 
unless  previously  dissolved  by  the  judge  granting  the  same, 
continue  until  the  next  term  of  the  court,  or  until  it  is  dis- 
Bolved  by  some  other  order  of  the  court. 


SECTION  XIII. 

BILLS    OF    REVrVOK   AND    SUPPLEMENTAL   BILLS. 

56.  Whenever  a  suit  in  equity  shall  become  abated  by  the 
death  of  either  party,  or  by  any  other  event,  the  same  may  bo 
46 


722     RULES  OF  U.  S.  SUPREME  COURT. 

Answers  —  Amendment  of  Answers. 

revived  by  a  bill  of  revivor,  or  a  bill  in  the  nature  of  a  bill  of 
revivor,  as  the  circumstances  of  the  case  may  require,  filed  by 
the  proper  parties  entitled  to  revive  the  same ;  which  bill  may 
be  filed  in  the  clerk's  office  at  any  time ;  and  iipon  suggestion 
of  the  facts,  the  proper  process  of  subpoena  shall,  as  of  course, 
be  issued  by  the  clerk,  requiring  the  proper  representatives  of 
the  other  party  to  appear  and  show  cause,  if  any  they  have, 
why  the  cause  should  not  be  revived.  And  if  no  cause  shall 
be  shown  at  the  next  rule-day  which  shall  occur  after  fourteen 
days  from  the  time  of  the  service  of  the  same  process,  the  suit 
shall  stand  revived,  as  of  course. 

57.  Whenever  any  suit  in  equity  shall  become  defective 
jfrom  any  event  happening  after  the  filing  of  the  bill,  (as,  for 
example,  by  change  of  interest  in  the  parties.)  or  for  any  other 
reason  a  supplemental  bill,  or  a  bill  in  the  nature  of  a  supple- 
mental bill,  may  be  necessary  to  be  filed  in  the  cause,  leave  to 
file  the  same  may  be  granted  by  any  judge  of  the  court  on  any 
rule-day,  upon  proper  cause  shown,  and  due  notice  to  the  other 
party.  And  if  leave  is  granted  to  file  such  supplemental  bill, 
the  defendant  shall  demur,  plead,  or  answer  thereto,  on  the 
next  succeeding  rule-day  after  the  supplemental  bill  is  filed  in 
the  clerk's  office,  unless  some  other  time  shall  be  assigned  by 
a  judge  of  the  court. 

58.  It  shall  not  be  necessary  in  any  bill  of  revivor,  or  sup- 
plemental bill,  to  set  forth  any  of  the  statements  in  the  original 
suit,  unless  the  special  circumstances  of  the  case  may  require  it. 


SECTION  XIV. 
ANSWERS. 

59.  Every  defendant  may  swear  to  his  answer  before  any 
justice  or  judge  of  any  court  of  the  United  States,  or  before 
any  commissioner  appointed  by  any  circuit  court  to  take  testi- 
mony or  depositions,  or  before  any  master  in  chancery  appointed 
by  any  circuit  court,  or  before  any  judge  of  any  court  of  a  state 
or  territory. 

SECTION  XV. 

AMENDMENT    OF    ANSWERS. 

60.  After  an  answer  is  put  in,  it  may  be  amended  as  ot 
course,  in  any  matter  of  form,  or  by  filling  up  a  blank  or 
correcting  a  date,  or  reference  to  a  document  or  other  small 


EULES   OF  U.  S.  SUPKEME   COURT.  723 

Exceptions  to  Answers. 

matter,  and  be  resworn,  at  any  time  before  a  replication  is  put 
in,  or  the  cause  is  set  down  for  a  hearing  upon  bill  and  answer. 
But  after  replication,  or  such  setting  down  for  a  hearing,  it  shall 
not  be  amended  in  any  material  matters,  as  by  adding  new  facts 
or  defenses,  or  qualifying  or  altering  the  original  statements, 
except  by  special  leave  of  the  court  or  of  a  judge  thereof,  upon 
motion  and  cause  shown  after  due  notice  to  the  adverse  party, 
supported,  if  required,  by  affidavit.  And  in  every  case  where 
leave  is  so  granted,  the  court  or  the  judge  granting  the  same 
may,  in  his  discretion,  require  that  the  same  be  separately 
engrossed  and  added  as  a  distinct  amendment  to  the  original 
answer,  so  as  to  be  distinguishable  therefrom. 


SECTION  XVI. 
EXCEPTIONS   TO   ANSWERS. 

61.  After  an  answer  is  filed  on  any  rule-day,  the  plaintiff 
shall  be  allowed  until  the  next  succeeding  rule-day  to  tile  in 
the  clerk's  office  exceptions  thereto  for  insufficiency,  and  no 
longer,  unless  a  longer  time  shall  be  allowed  for  the  purpose, 
upon  cause  shown  to  the  court  or  a  judge  thereof;  and  if  no 
exceptions  shall  be  tiled  thereto  within  that  period,  the  answer 
shall  be  deemed  and  taken  to  be  sufficient. 

62.  When  the  same  solicitor  is  employed  for  two  or  more 
defendants,  and  separate  answers  shall  be  filed,  or  other  pro- 
ceedings had  by  two  or  more  of  the  defendants  separately, 
costs  shall  not  be  allowed  for  such  separate  answers  or  other 
proceedings,  unless  a  master,  upon  reference  to  him,  shall 
certify  that  such  separate  answers  and  other  proceedings  were 
necessary  or  proper,  and  ought  not  to  have  been  joined  together. 

63.  Where  exceptions  shall  be  filed  to  the  answer  for  insuf- 
ficiency within  the  period  prescribed  by  these  rules,  if  the 
defendant  shall  not  submit  to  the  same  and  file  an  amended 
answer  on  the  next  succeeding  rule-day,  the  plaintiff  shall 
forthwith  set  them  down  for  a  hearing  on  the  next  succeeding 
rule-day  thereafter  before  a  judge  of  the  court,  and  shall  enter, 
as  of  course,  in  the  order-book,  an  order  for  that  purpose.  And 
if  he  shall  not  so  set  down  the  same  for  a  hearing,  the  exceptions 
shall  be  deemed  abandoned,  and  the  answer  shall  be  deemed 
sufficient:  provided,  however,  that  the  court,  or  any  judge 
thereof,  may,  for  good  cause  shown,  enlarge  the  time  for  filing 
exceptions,  or  for  answering  the  same,  in  his  discretion,  upon 
such  terms  as  he  may  deem  reasonable. 


724  RULES   OF  U.  S.  SUPREME   COURT. 

Replication  and  Issue  —  Testimony,  how  Taken. 

64.  If  at  the  hearing  the  exceptions  sliall  be  allowed,  the 
defendant  shall  be  allowed  to  put  in  a  full  and  complete  answer 
thereto  on  the  next  succeeding  rule-day  ;  otherwise  the  plaintiff 
shall,  as  of  course,  be  entitled  to  take  the  bill,  so  far  as  the 
matter  of  such  exceptions  is  concerned,  as  confessed,  or,  at  his 
election,  he  may  have  a  writ  of  attachment  to  compel  the  de- 
fendant to  make  a  better  answer  to  the  matter  of  the  exceptions ; 
and  the  defendant,  when  he  is  in  custody  upon  such  writ,  shall 
not  be  discharged  therefrom  but  by  an  order  of  the  court,  or 
of  a  judge  thereof,  upon  his  putting  in  such  answer  and 
complying  with  such  other  terms  as  the  court  or  judge  may 
direct. 

65.  If  upon  argument,  the  plaintiff's  exceptions  to  the  answer 
shall  be  overruled,  or  the  answer  shall  be  adjudged  insufficient, 
the  prevailing  party  shall  be  entitled  to  all  the  costs  occasioned 
thereby,  unless  otherwise  directed  by  the  court,  or  the  judge 
thereof,  at  the  hearing  upon  the  exceptions. 


SECTION  XVII. 

REPLICATION    AND   ISSUE. 

66.  Whenever  the  answer  of  the  defendant  shall  not  be 
excepted  to,  or  shall  be  adjudged  or  deemed  sufficient,  the 
plaintiff  shall  file  the  general  replication  thereto  on  or  before 
the  next  succeeding  rule-day  thereafter  ;  and  in  all  cases  where 
the  general  replication  is  filed  the  cause  shall  be  deemed  to  all 
intents  and  purposes  at  issue,  without  any  rejoinder  or  other 
pleading  on  either  side.  If  the  plaintiff  shall  omit  or  refuse  to 
file  such  replication  within  the  prescribed  period,  the  defendant 
shall  be  entitled  to  an  order,  as  of  coui'se,  for  a  dismissal  of  the 
suit ;  and  the  suit  shall  thereupon  stand  dismissed,  unless  the 
court,  or  a  judge  thereof,  shall,  upon  motion  for  cause  shown, 
allow  a  replication  to  be  filed  nunc  pro  tunc,  the  plaintiff  sub- 
mitting to  speed  the  cause,  and  to  such  other  terms  as  may  be 
directed. 

SECTION  XVIII. 
TESTIMONY,    HOW   TAKEN. 

67.  After  the  cause  is  at  issue,  commissions  to  take  testimony 
may  be  taken  out  in  vacation  as  well  as  in  term,  jointly  by 
both  parties,  or  severally  by  either  party,  upon  interrogatories 


RULES   OF  U.  S.  SUPREME   COURT.  725 

Testimony,  how  Taken. 

filed  by  the  party  taking  out  the  same  in  tlie  clerk's  oflfice,  ten 
days'  notice  thereof  being  given  to  the  adverse  party  to  file 
cross-interrogatories  before  the  issuing  of  the  commission  ;  and 
if  no  cross-interrogatories  are  filed  at  the  expiration  of  the  time, 
the  commission  may  issue  ex  parte.  In  all  cases  the  commis- 
eioner  or  commissioners  shall  be  named  by  the  court,  or  by  a 
judge  thereof.  If  the  parties  shall  so  agree,  the  testimony  may 
be  taken  upon  oral  interrogatories  by  the  parties  or  their  agents, 
without  filing  any  written  interrogatories. 

Decemher  Term,  185^. 

Ordered^  That  the  sixty-seventh  rule  governing  equity  prac- 
tice be  so  amended  as  to  allow  the  presiding  judge  of  any  court 
exercising  jurisdiction,  either  in  term  time  or  vacation,  to  vest 
in  the  clerk  of  said  court  general  power  to  name  commissioners 
to  take  testimony  in  like  manner  that  the  court  or  judge  thereot 
can  now  do  by  the  said  sixty-seventh  rule. 

Decemb&r  Terra,  1861. 

Ordered,  That  the  last  paragraph  in  the  sixty-seventh  rule 
in  equity  be  repealed,  and  the  rule  be  amended  as  follows: 
Either  party  may  give  notice  to  the  other  that  he  desires 
the  evidence  to  be  adduced  in  the  cause  to  be  taken  orally, 
and  thereupon  all  the  witnesses  to  be  examined  shall  be 
examined  before  one  of  the  examiners  of  the  court,  or  before 
an  examiner  to  be  specially  appointed  by  the  court,  the  ex- 
aminer to  be  furnished  with  a  copy  of  the  bill  and  answer, 
if  any ;  and  such  examination  shall  take  place  in  the  presence 
of  the  parties  or  their  agents,  by  their  counsel  or  solicitors,  and 
the  witnesses  shall  be  subject  to  cross-examination  and  reexam- 
ination, and  which  shall  be  conducted  as  near  as  may  be  in  the 
mode  now  used  in  common  law  courts.  Tlie  depositions  taken 
in  such  oral  examination  shall  be  taken  down  in  writing  by  the 
examiner  in  the  form  of  narrative,  unless  he  determines  the 
examination  shall  be  by  question  and  answer  in  special  instances ; 
and,  when  completed,  shall  be  read  over  to  the  witness  and 
signed  by  him  in  the  presence  of  the  parties  or  counsel,  or  such 
of  them  as  may  attend ;  provided,  if  the  witness  shall  refuse  to 
sign  the  said  deposition,  then  the  examiner  shall  sign  the  same ; 
and  the  examiner  may,  upon  all  examinations,  state  any  special 
matters  to  the  court  as  he  shall  think  fit ;  and  any  question  or 
questions  which  may  be  objected  to  shall  be  noted  by  the  ex- 
aminer upon  the  deposition,  but  he  shall  not  have  power  to 
decide  on  the  competency,  materiality,  or  relevancy  of  the 


726  EULES   OF  U.  S.  SUPEEME   COUET. 

Testimony,  how  Taken. 

questions  ;  and  the  court  shall  have  power  to  deal  with  the 
costs  of  incompetent,  immaterial,  or  irrelevant  depositions,  or 
parts  of  them,  as  may  be  just. 

The  compulsory  attendance  of  witnesses. 

In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn,  or  to 
answer  any  question  put  by  the  examiner,  or  by  counsel  or 
solicitor,  the  same  practice  shall  be  adopted  as  is  now  practiced 
with  respect  to  witnesses  to  be  produced  on  examination  before 
an  examiner  of  said  court  on  written  interrogatories. 

Notice  shall  be  given  by  the  respective  counsel  or  solicitors, 
to  the  opposite  counsel  or  solicitors  or  parties,  of  the  time  and 
place  of  the  examination,  for  such  reasonable  time  as  the  exam- 
iner may  fix  by  order  in  each  cause. 

When  the  examination  of  witnesses  before  the  examiner  is 
concluded,  the  original  deposition,  authenticated  by  the  signa- 
ture of  the  examiner,  shall  be  transmitted  by  him  to  the  clerk 
of  the  court,  to  be  there  filed  of  record  in  the  same  mode  as 
prescribed  in  the  thirtieth  section  of  act  of  congress,  Septem- 
ber 24,  1789. 

Testimony  may  be  taken  on  commission  in  the  usual  way  by 
written  interrogatories  and  cross-interrogatories,  on  motion  to 
the  court  in  term  time,  or  to  a  judge  in  vacation,  for  special 
reasons  satisfactory  to  the  court  or  judge. 

December  Term,  1869. 

Amendment  to  67th  rule. — Where  the  evidence  to  be  adduced 
in  a  cause  is  to  be  taken  orally,  as  provided  in  the  order  passed 
at  the  December  term,  1861,  amending  the  67th  general  rule, 
the  court  may,  on  motion  of  either  party,  assign  a  time  within 
which  the  complainant  shall  take  his  evidence  in  support  of  the 
bill,  and  a  time  thereafter  within  which  the  defendant  shall 
take  his  evidence  in  defense,  and  a  time  thereafter  within  which 
the  complainant  shall  take  his  evidence  in  reply ;  and  no  further 
evidence  shall  be  taken  in  the  cause  unless  by  agreement  of  the 
parties,  or  by  leave  of  court  first  obtained  on  motion  for  cause 
shown. 

68.  Testimony  may  also  be  taken  in  the  cause  after  it  is  at 
issue  by  deposition,  according  to  the  acts  of  congress.  But  in 
such  case,  if  no  notice  is  given  to  the  adverse  party  of  the  time 
and  place  of  taking  the  deposition,  he  shall,  upon  motion  and 
affidavit  of  the  fact,  be  entitled  to  a  cross-examination  of  the 
witness,  either  under  a  commission  or  by  a  new  deposition 
taken  under  the  acts  of  congress,  if  a  court  or  a  judge  thereof 
shall,  under  all  the  circumstances,  deem  it  reasonable. 


KULES   OF  U.  S.  SUPKEME   COURT.  727 

Testimony  De  Bene  Esse — Form  of  last  Interrogatory. 

69.  Three  months  and  no  more  shall  be  allowed  for  the  taking 
of  testimony  after  the  cause  is  at  issue,  unless  the  court  or  a 
judge  thereof  shall,  upon  special  cause  sliown  by  either  party,  en- 
large the  time ;  and  no  testimony  taken  after  such  period  shall 
be  allowed  to  be  read  in  evidence  at  the  hearing.  Immediately 
upon  the  return  of  the  connnissions  and  depositions  containing 
the  testimony  into  the  clerk's  office,  publication  thereof  may 
be  ordered  in  the  clerk's  office,  by  any  judge  of  the  court,  upon 
due  notice  to  the  parties,  or  it  may  be  enlarged,  as  he  may 
deem  reasonable  under  all  the  circumstances ;  but,  by  consent 
of  the  parties,  publication  of  the  testimony  may  at  any  time 
pass  in  the  clerk's  office,  such  consent  being  in  writing,  and  a 
copy  thereof  entered  in  the  order-books,  or  indorsed  upon  the 
deposition  or  testimony. 


SECTION  XIX. 

TESTIMONY    DE    BENE    ESSE. 

70.  After  any  bill  filed,  and  before  the  defendant  hath  an- 
swered the  same,  upon  affidavit  made  that  any  of  the  plaintiff's 
witnesses  are  aged  and  infirm,  or  going  out  of  the  country,  or 
that  any  one  of  them  is  a  single  witness  to  a  material  fact,  the 
clerk  of  the  court  shall,  as  of  course,  upon  the  application  ol 
the  plaintiff,  issue  a  commission  to  such  commissioner  or  com- 
missioners as  a  judge  of  the  court  may  direct,  to  take  the 
examination  of  such  witness  or  witnesses  de  hene  csse^  upon 
giving  due  notice  to  the  adverse  party  of  the  time  and  place 
of  taking  his  testimony. 


SECTION  XX. 

FOBM  OF  THE  LAST  INTERROGATOET. 

71.  The  last  interrogatory  in  the  written  interrogatories  to 
take  testimony  now  commonly  in  use  shall  in  the  future  be 
altered  and  stated  in  substance  thus :  "  Do  you  know,  or  can 
you  set  forth,  any  other  matter  or  thing  which  may  be  a  benefit 
or  advantage  to  the  parties  at  issue  in  this  cause,  or  either  of 
them,  or  that  may  be  material  to  the  subject  of  this  your  exam- 
ination, or  the  matters  in  question  in  this  cause?  If  yea,  set 
forth  the  same  fully  and  at  large  in  your  answer." 


728  RULES   OF  U.  S.  SUPREME   COURT. 

Croas-Bill  —  Reference  to  and  Proceedings  before  Master. 

SECTION  XXI. 
CK088-BILL. 

72.  Where  a  defendant  in  equity  files  a  cross-bill  for  discovery 
only  against  the  plaintiff  in  the  original  bill,  the  defendant  to 
the  original  bill  shall  first  answer  thereto  before  the  original 
plaintiff  shall  be  compellable  to  answer  the  cross-bill.  The 
answer  of  the  original  plaintiff  to  such  cross-bill  may  be  read 
and  used  by  the  party  filing  the  cross-bill  at  the  hearing,  in  the 
game  manner  and  under  the  same  restrictions  as  the  answer 
praying  relief  may  now  be  read  and  used. 


SECTION   XXII. 
REFERENCE   TO    AND    PROCEEDINGS    BEFORE   MASTERS. 

73.  Every  decree  for  an  account  of  the  personal  estate  of  a 
testator  or  intestate  shall  contain  a  direction  to  the  master,  to 
whom  it  is  referred  to  take  the  same,  to  inquire  and  state  to  the 
court  what  parts,  if  any,  of  such  personal  estate  are  outstanding 
or  undisposed  of,  unless  the  court  shall  otherwise  direct. 

74.  Whenever  any  reference  of  any  matter  is  made  to  a  master 
to  examine  and  report  thereon,  the  party  at  whose  instance  or 
for  whose  benefit  the  reference  is  made  shall  cause  the  same  to 
be  presented  to  the  master  for  a  hearing  on  or  before  the  next 
rule-day  succeeding  the  time  when  the  reference  was  made ;  if 
he  shall  omit  to  do  so,  the  adverse  party  shall  be  at  liberty 
forthwith  to  cause  proceedings  to  be  had  before  the  master,  at 
the  costs  of  the  party  procuring  the  reference. 

75.  Upon  every  such  reference  it  shall  be  the  duty  of  the 
master,  as  soon  as  he  reasonably  can  after  the  same  is  brought 
before  him,  to  assign  a  time  and  place  for  proceedings  in  the 
same,  and  to  give  due  notice  thereof  to  each  of  the  parties,  or 
their  solicitors ;  and  if  either  party  shall  fail  to  appear  at  the 
time  and  place  appointed,  the  master  shall  be  at  liberty  to  pro- 
ceed ex  jparte^  or,  in  his  discretion,  to  adjourn  the  examination 
and  proceedings  to  a  future  day,  giving  notice  to  the  absent 
party  or  his  solicitor  of  such  adjournment ;  and  it  shall  be  the 
dutv  of  the  master  to  proceed  witli  all  reasonable  diligence  in 
every  such  reference,  and  with  the  least  practicable  delay,  and 
either  party  shall  be  at  liberty  to  upply  to  tlie  court,  or  a  judge 
thereof,  for  an  order  to  the  iiiastir  to  speed  the  proceedings, 


RULES   OF  U.  S.  SUPREME   COURT.  729 

Reference  to  and  Proceedings  before  Master. 

and  to  make  his  report,  and  to  certify  to  the  court  or  judge,  the 
reasons  for  any  delay. 

76.  In  the  reports  made  by  the  master  to  tlie  court  no  part  of 
any  state  of  facts,  charge,  affidavit,  deposition,  examination,  or 
answer  brought  in  or  used  before  them  shall  be  stated  or  recited. 
But  such  state  of  facts,  charge,  affidavit,  deposition,  examination, 
or  answer  shall  be  identified,  specified,  and  referred  to,  so  as  to 
inform  the  court  w^hat  state  of  facts,  charge,  affidavit,  deposition, 
examination,  or  answer  were  so  brought  in  or  used. 

77.  The  master  shall  regulate  all  the  proceedings  in  every 
hearing  before  him,  upon  every  such  reference ;  and  he  shall 
have  full  authority  to  examine  the  parties  in  the  cause,  upon 
oath,  touching  all  matters  contained  in  the  reference ;  and  also 
to  reqiiire  the  production  of  all  books,  papers,  writings,  vouchers, 
and  other  documents  applicable  thereto  ;  and  also  to  examine  on 
oath,  viva  voce,  all  witnesses  produced  by  the  parties  before 
him,  and  to  order  the  examination  of  other  witnesses  to  be  taken, 
under  a  commission  to  be  issued  upon  his  certificate  from  the 
clerk's  office,  or  by  deposition,  according  to  the  acts  of  congress, 
or  otherwise,  as  hereinafter  provided ;  and  also  to  direct  the 
mode  in  which  the  matters  requiring  evidence  shall  be  proved 
before  him  ;  and  generally  to  do  all  other  acts,  and  direct  all 
other  inquiries  and  proceedings  in  the  matters  before  him,  which 
he  may  deem  necessary  and  proper  to  the  justice  and  merits 
thereof  and  the  rights  of  the  parties. 

78.  Witnesses  who  live  within  the  district  may,  upon  due 
notice  to  the  opposite  party  be  summoned  to  appear  before  the 
commissioner  appointed  to  take  testimony,  or  before  a  master 
or  examiner  appointed  in  any  cause,  by  subpoena  in  the  usual 
form,  which  may  be  issued  by  the  clerk  in  blank,  and  filled  up 
by  the  party  praying  the  same,  or  by  the  commissioner,  mas- 
ter, or  examiner,  requiring  the  attendance  of  the  witnesses  at 
the  time  and  place  specified,  who  shall  be  allowed  for  attend- 
ance the  same  compensation  as  for  attendance  in  court; 
and  if  any  witness  shall  refuse  to  appear,  or  to  give  evidence, 
it  shall  be  deemed  a  contempt  of  the  court,  which  being 
certified  to  the  clerk's  office  by  the  commissioner,  master,  or 
examiner,  an  attachment  may  issue  thereupon  by  order  of 
the  court  or  of  any  judge  thereof,  in  the  same  manner  as  if 
the  contempt  were  for  not  attending,  or  for  refusing  to  ^ive 
testimony  in  the  court.  But  nothing  herein  contained  sliall 
prevent  the  examination  of  witnesses  viva  voce  when  pro- 
duced in  open  court,  if  the  court  shall,  in  its  discretion, 
deem  it  advisable. 


730  EULES   OF  U.  S.  SUPREME   COURT. 

Exceptions  to  Master's  Report. 

79.  All  parties  accounting  before  a  master  shall  bring  in 
their  respective  accounts  in  the  form  of  debtor  and  creditor ; 
and  any  of  the  other  parties  who  shall  not  be  satisfied  with 
the  accounts  so  brou^'ht  in  shall  be  at  liberty  to  examine  the 
accounting  party  vivd  voce,  or  upon  interrogatories  in  the 
master's  office,  or  by  deposition,  as  the  master  shall  direct. 

80.  All  affidavits,  depositions,  and  documents  which  have 
been  previously  made,  read  or  used  in  the  court,  upon  any 
proceeding  in  any  cause  or  matter,  may  be  used  before  the 
master. 

81.  The  master  shall  be  at  liberty  to  examine  any  creditor 
or  other  person  coming  in  to  claim  before  him,  either  upon 
written  interrogatories  or  vivd  voce,  or  in  both  modes,  as  the 
nature  of  the  case  may  appear  to  him  to  require.  The  evi- 
dence upon  such  examinations  shall  be  taken  down  by  the 
master,  or  by  some  other  person  by  his  order  and  in  his 
presence,  if  either  party  requires  it,  in  order  that  the  same  may 
be  used  by  the  court,  if  necessary. 

82.  The  circuit  courts  may  appoint  standing  masters  in 
chancery  in  their  respective  districts,  both  the  judges  concur- 
ring in  the  appointment;  and  they  may  also  appoint  a  master 
pro  hao  vice  in  any  particular  case.  The  compensation  to  be 
allowed  to  every  master  in  chancery  for  his  services  in  any  par- 
ticular case  shall  be  fixed  by  the  circuit  court  in  its  discretion, 
having  regard  to  all  the  circumstances  thereof,  and  the  compen- 
sation shall  be  charged  upon  and  borne  by  such  of  the  parties 
in  the  cause  as  the  court  shall  direct.  The  master  shall  not 
retain  his  report  as  security  for  his  compensation ;  but  when 
the  compensation  is  allowed  by  the  court,  he  shall  be  entitled 
to  an  attachment  for  the  amount  against  the  party  who  is 
ordered  to  pay  the  same,  if,  upon  notice  thereof,  he  does  not 
pay  it  within  the  time  prescribed  by  the  court. 


SECTION  XXIIL 

EXCEPTIONS  TO  REPORT  OF  MASTER. 

83.  The  master,  as  soon  as  his  report  is  ready,  shall  return 
the  same  into  the  clerk's  office,  and  the  day  of  the  return  shall 
be  entered  by  the  clerk  in  the  order  book.  The  parties  shall 
have  one  month  from  the  time  of  filing  the  report  to  file 
exceptions  thereto ;  and  if  no  exceptions  are  within  that 
period  filed  by  either  party,  the  report  shall  stand  confirmed 
on  the  next  rule-day  after  the  month  has  expired.     If  excep- 


RULES   OF  U.  S.  SUPREME   COURT.  731 

Decrees  —  Guardians  and  Prochein  Amis. 

tions  are  filed,  they  shall  stand  for  hearing  before  the  court,  if 
the  court  is  then  in  session ;  or,  if  not,  then  at  the  next  sitting 
of  the  court  which  shall  be  held  thereafter  by  adjournment  or 
otherwise. 

84.  And  in  order  to  prevent  exceptions  to  reports  from  being 
filed  for  frivolous  causes,  or  for  mere  delay,  Jhe  party  whose 
exceptions  are  overruled  shall,  for  every  exception  overruled, 
pay  costs  to  the  other  party,  and  for  every  exception  allowed 
shall  be  entitled  to  costs  —  the  costs  to  be  fixed  in  each  case  by 
the  court,  by  a  standing  rule  of  the  circuit  court. 


SECTION  XXIV 

DECKEES. 

85.  Clerical  mistakes  in  decrees,  or  decretal  orders,  or  errors 
arising  from  any  accidental  slip  or  omission,  may,  at  any  time 
before  an  actual  enrollment  thereof,  be  corrected  by  order  of 
the  court  or  a  judge  thereof,  upon  petition,  without  the  form 
or  expense  of  a  rehearing. 

86.  In  drawing  up  decrees  and  orders,  neither  the  bill,  nor 
answer,  nor  other  pleadings,  nor  any  part  thereof,  nor  the 
report  of  any  master,  nor  an}^  other  prior  proceeding,  shall  be 
recited  or  stated  in  the  decree  or  order;  but  the  decree  and 
order  shall  begin,  in  substance,  as  follows :  "  This  cause  came 
on  to  be  heard  (or  to  he  further  heard.,  as  the  case  may  be,)  at 
this  term,  and  was  argued  by  counsel ;  and  thereupon,  upon 
consideration  thereof,  it  was  ordered,  adjudged,  and  decreed  as 
follows,  viz. :"     {Here  insert  the  decree  or  order.) 


SECTION  XXV. 
GUARDIANS    AND   PKOCHEIN    AMIS. 

ST.  Guardians  ad  litem  to  defend  a  suit  may  be  appointed 
by  the  court,  or  by  any  judge  thereof,  for  infants  or  other  per- 
sons who  are  under  guardianship,  or  otherwise  incapable  to  sue 
for  themselves.  All  infants  and  other  persons  so  incapable  may 
sue  by  their  guardians,  if  any,  or  by  their  prochein  am.i ;  sub- 
ject, however,  to  such  orders  as  the  court  may  direct  for  the 
protection  of  infants  and  other  persons. 

88.  Every  petition  for  a  rehearing  shall  contain  the  special 
matter  or  cause  on  which  such  rehearing  is  applied  for,  shall  b© 


732  KTJLES   OF  U.  S.  SUPREME   COURT. 

Petitions  for  Rehearing,  etc. 

signed  by  counsel,  and  the  facts  therein  stated,  if  not  apparent 
on  the  record,  shall  be  veriiied  by  the  oath  of  the  party,  or  by 
some  other  person,  No  rehearing  shall  be  granted  after  the 
the  term  at  which  the  final  decree  of  the  court  shall  have  been 
entered  and  recorded,  if  an  appeal  lies  to  the  Supreme  Court. 
But  if  no  appeal  lies,  the  petition  may  be  admitted  at  any  time 
before  the  end  of  the  next  term  of  the  court  in  the  discretion 
of  the  court, 

89,  The  circuit  courts  (both  judges  concurring  therein)  may 
make  any  other  and  further  rules  and  regulations  for  the  prac- 
tice, proceedings,  and  process,  mesne  and  final,  in  their  respect- 
ive districts,  not  inconsistent  with  the  rules  hereby  "prescribed, 
in  their  discretion,  and  from  time  to  time  alter  and  amend  the 
same. 

90,  In  all  cases  where  the  rules  prescribed  by  this  court  or 
by  the  circuit  court  do  not  apply,  the  practice  of  the  circuit 
court  shall  be  regulated  by  the  present  practice  of  the  High 
Court  of  Chancery  in  England,  so  far  as  the  same  may  reason- 
ably be  applied  consistently  with  the  local  circumstances  and 
local  convenience  of  the  district  where  the  court  is  held,  not  as 
positive  rules,  but  as  furnishing  just  analogies  to  regulate  the 
practice, 

91,  Whenever,  under  these  rules,  an  oath  is  or  may  be 
required  to  be  taken,  the  party  may,  if  conscientiously  scrupu- 
lous of  taking  an  oath,  in  lieu  thereof,  make  solemn  affirmation 
to  the  truth  of  the  facts  stated  by  him. 

December  Term,  1863. 

92,  Ordered,  That  in  suits  in  equity  for  the  foreclosure  of 
mortgages  in  the  circuit  courts  of  the  United  States,  or  in  any 
court  of  the  territories  having  jurisdiction  of  the  same,  a 
decree  may  be  rendered  for  any  balance  that  may  be  found 
due  to  the  complainant  over  and  above  the  proceeds  of  the  sale 
or  sales,  and  execution  may  issue  for  the  collection  of  the 
same,  as  is  provided  in  the  8th  rule  of  this  court  regulating 
the  equity  practice,  where  the  decree  is  solelv  for  the  payment 
of  money. 


TABLE  OF   CASES   CITED. 


Abbev.  Goodwin,  7  Conn 853 

Abraham  v.  Bubb,  2  Preem.  Ch 563-564 

Abraham  v.  Dodgson,  2  Atk.  R 276 

Abraham  v.  Plutora,  3  Wend 48 

Adams  V.  Dixon,  19  Geo 279 

Adams  v.  Downing,  2  Mad. . . .  215,  218,  219 

Adams  v.  Porter,  1  Cueh 133 

Ahl  V.  Johnson,  20  How.  U.  S 319 

Aggas  V.  Pickerill,  3  Atk 113 

Ahrenfelt  v.  Ahrenfelt,  Hoff.  Ch 526 

Aiken  v.  Ballard,  Rice,  Ch 44,  47 

Aiken  v.  Lloyd,  28  Dl 36 

Albany  City  Bank  v.  Schermerhorn,  1 

Clarke 403,  404 

Albright  v.   Smith,  6   Chicago   Legal 

News 618 

Aldrich  v.  Sharp,  3  Scam 390 

Alemany  v.  Wensinger,  40  Cal 288 

Allan  V.  Allan,  15  Ves 294,  295 

Allen  T.  Allen,  4  Allen 510 

Allen  V.  Allen,  Hemp 313 

Allen  V.  Beal,  3  A.  K.  Marsh 323 

Allen  V.  Coffman,  1  Bibb 57 

Allen  V.  Randolph,  4  Johns.  Ch. . .  117,  118 

Allen  V.  Smith,  1  Leigh  R 165 

Allison  V.  Allen,  46  HI 548 

Allison  V.  Clark,  Breese 318 

Alpha  V.  Payman,  1  Dick.  R 132 

Alton  M.  &  P.  Co.  V.  Bnckmaster,  13  HI.  535 

Altree  v.  Hardin,  3  Lond.  Jurist 167 

Amos  V.  Amos,  3  Greene,  N.  J.  Ch 532 

Anderson  v.  Ward,  6  Monr 313 

Anderson  v.  White,  27  111 327 

Anderson  v.  White,  10  Paige,  Ch 227 

Angell  V.  Angell,  1  Sim.  &  Stu.  294,  296,  299 

Angell  V.  Hadden,  16  Ves 291 

Anglin  v.  Nott,  1  Scam 74 

Anon.  15  Ves 84 

Anon.35Ala 488 

Anon.  2  Ves 95,  299 

Anon.  Amb 299 

Anon.  2  Preem 356,  357 

Anon.  1  Atk 555 

Anon.  3  Atk 117,  227,  353 

Anon.  1  Vem 291 


Anon.  3  Mad 834,  335 

Anshutz  V.  Anshutz,  1  C.  E.   Greene, 

N.  J 611 

Anthony  v.  Anthony.  3  Stockt.  N.  J. . .  503 

Anthony  v.  Leftwick,  3  Rand 318 

Archbishop  of  York  v.  Stapleton,  2  Atk.  165 

Archibald  v.  Argall,  53  111 98 

Archibald  v.  Means,  5  Ired.  Eq.  R 42 

Arendell  v.  Blackwell,  1  Dev.  Ch 167 

Armistead  v.  Bozman,  1  Ired.  Ch.  R...  171 
Armstrong  v.  Armstrong,  35  111.  109, 464,  523 
Armstrong  v.  Armstrong,  3  Geo.  Miss. .  509 

Armstrong  v.  Athens  Co.  10  Ohio 51 

Armstrong  v.  Caldwell,  2  Scam 47 

Armstrong  V.  Cooper,  11  111 200,  397 

Armstrong  v.  Gilchrist,  2  Johns.  Ch.  R.  269 

Arnold  v.  Styles,  2  Blackf 235 

Artee  V.  Engart,  13  111 152 

Asbee  v.  Skipley,  Mad.  &  Geld. 207 

Ashbaugh  v.  Ashbaugh,  17  HI 497 

Astley  V.  Pountaine,  Pinch 129 

Aston  V.  Aston,  1  Ves 564 

Atkin  V.  Merrell,  39  111.  306,  307,  458,  477,  478 

Atkinson  v.  Manks,  1  Cowen,  279,  281,  283 

288,  291,  292 

Atterbery  t.  Knox,  8  Dana 88 

Attorney  General  v.  Birch,  4  Mad 277 

Attorney  General  v.    Bradford    Canal 

Co.  2Eq.  Cas.  Abr 103 

Attorney  General  v.  Brown,  1  Swanst..  105 
Attorney  General  v.  Day,  1  Ves....  222-223 
Attorney  General  v.  Poster,  2  Hare,  240 

241 
Attorney  General  v.  Garrison,  11  Mass.  569 
Attorney  General  v.  Whorwood,  1  Ves. 

Sr 64 

Atwill  V.  Ferrett,  2  Blatchf.  C.  C...  49,  104 

Austin  V.  Bain ter,  50  HI 189- 

Austin  V.  Richardson,  1  Qratt 64 

Avery  v.  Holland,  2  Overton 108,  278 

Axburg  V.  Finchan,  1  Vern 228 

Aymer  v.  Gaunt,  2  Paige,  Ch 289,  291 

B 

Babcock  v.  McCamant,  53  HI 47,  IDS 

Babcock   v.    Willard,    4    West.    Law 
Monthly 398.  899 


734 


TABLE   OF   CASES   CITED. 


Babcock  v.  Wyman,  19  How.  U.  8 351 

Badeau  v.  Rogers,  2  Paige,  Ch.  280,  289,  292 

Badger  v.  Badger,  2  Wallace 47 

Baggott  V.  Henry,  1  Edw.  Ch 159-160 

Baguall  V.  Bagnall,  2  Eq.  Abr 216 

Bailey  v.  Bailey,  97  Mass 502 

Bailey  v.  Bailey,  21  Gratt.  Va 532 

Bailey  V.  Bennett,  3  Younge 166 

Bailey  v.  Barton,  8  Wend 398,  400 

Bailey  v.  West,  41  111 459,  466 

Bailey  v.  Wilson,  1  Dev.  &  Bat.  Ch. . . .  134 

Bailey  v.  Wright,  2  Bond 135 

Baines  v.  McGee,  1  S.  &  M 47,  50,  100 

Baird  v.  Baird,  1  Dev.  &  Bat 340 

Baker  v.  Biddle,  1  Bald 46 

Baker  v.  Bishop  Hill  Colony,  45  HI 321 

Baker  v.  Booker,  6  Price 99 

Baker  v.  Kingsland,  3  Edw.  Ch 158 

Baker  v.  Mellish,  11  Ves 106 

Baleom  v.  N.  T.  Life  Ihb.  Co.  etc.  11 

Paige,  Ch.  R 161 

Baldwin  v.  Mackown,  3  Atk 212 

Balentine  V.  Beall,  3  Scam 400 

Balfour  v.  Welland,  16  Ves 334 

Ball  V.  Shattack,  16  HI 75 

Ballance  v.  Underbill,  3  Scam.  181,  305,  306 

324 

Bampton  v.  Birchall,  1  Phillips 247 

Bank  v.  Carrollton  Railroad,  11  Wall.  341 
Bank  of  Columbia  v.  Hagner,  1  Pet.. ..  321 
Bank    of    Muskingum    v.    Carpenter, 

Wright 49,  51,  100 

Bank  of  Orleans  v.  Skinner,  9  Paige, 

Ch 61 

Bank  of  Utica  v.  Messereau,  7  Paige, 

Ch.  R 134 

Bank,  etc.,  v.  Dunyan,  2  Bland 401 

Bank   of    Soath   Carolina  v.   Rose,  1 

Strobh.  Eq 358 

Bank  of  U.  S.  v.  White,  8  Pet 254 

Banks  v.  Anderson,  2  Hen.  &  M 251 

Banta  v.  Banta,  3  Edw.  Ch 492 

Banta  v.  Moore,  2  McCarter's  N.  J.  R. .  100 

Barbour  v.  Whitlock,  4  Monr 64 

Barksdale  v.  Payne,  Riley,  Ch 317 

Barnard  v.  Cushman,  35  HI 108,  359 

Barnes  v.  Hazelton,  50  HI 76 

Barney  v.  Myers,  28  Iowa ' 390 

Barns  v.  Dickinson,  1  Dev.  Ch.  R 254 

Barnstead  v.  Empire  Mining  Co.  5  Cal.  338 

Barring  v.  Nash,  1  Ves.  &B 44 

Barrington  v.  O'Brien,  2  Ball.  &  Beat. .  306 

Barron  v.  Martin,  19  Ves 353 

Barron  v.  Robbins,  22  Mich 536 

Barron  v.  Bailey,  5  Florida 397 

Barry  v.  Jenkins,  1  Mylne  &  Craig 234 

Barry  v.  Rogers.  2  Bibb 51,  65 

Barstow  v.  Smith,  Walk 101 

Bartlett  v.  Bartlett,  1  Clarke,  N.  Y 517 

Barton  v.  May,  3  Sandf .  Ch.  R 358 


Barton  v.  Moss,  .32  111 56,  142 

Bascomb  v.  Bascomb,  5  Foster 488 

Bascomb  v.  Bascomb,  Wright,  Ch 511 

Bassctt  V.  Brown,  100  Mass 46 

Batchelder  v.  Batchelder.  14  N.  H 498 

Bate  V.  McLaughlin,  1  A.  K.  Marsh....  141 

Bateman  v.  Willoc,  1  Sch.  &  Lef 54 

Bates  V.  Delavan,  5  Paige 197 

Bates  V.  Wheeler,  1  Scam 326 

Batterson  v.  Ferguson,  1  Barb 136 

Bax  V.  Whitbread,  16  Ves 200 

Baxter  v.  Hutchings,  49  111 577,  578,  579 

Baxter  v.  West,  1  Drewry  &  Sm 339 

Bay  V.  Cook,  31  111 397 

Bayerque  v.  Cohen,  1  McAllister 435 

Beach  v.  Fulton,  3  Wend 153 

Beach  vs.  Shaw,  57  111 353 

Beams  V.  Denham,  2  Scam 171 

Beard  v.  Fowler,  2  Bond 98,  113 

Bearden  v.  Wood,  1  A.  K.  Marsh 319 

Beaubien  v.  Sabine,  2  Scam 74 

Beauchamp  v.  Kankakee  Co.  45  HI 612 

Beauchamp  v.  Pntman,  34  111..  193,  194,  312 

313 

Beaugenan  v.  Lercotte,  Breeae 47 

Beaumont  v.  Bonlbree,  5  Ves 57,  166 

Beaumont  v.  Meredith,  3  Ves.  &  B 339 

Bechinall  v.  Arnold,  1  Vem 299 

Beck  V.  Burdett,  1  Paige,  Ch 397 

Beckford  v.  Wade,  17  Ves 353 

Beckwith  v.  Butler,  1  Wash.  Va 186 

Bedell  v.  Hoffman,  2  Paige,  Ch. . . .  279,  292 

Beekman  v.  Frost,  18  Johns 359,  360 

Beekman  v.  Waters,  3  Johns.  Ch 166 

Bell  v.  Nims,  51  111 90 

Bell  V.  Pomeroy,  4  McLean 134,  269 

Bellamy  v.  Bellamy,  4  Florida 199 

Bellamy  v.  Jones,  8  Ves 294 

Bellingall  v.  Gear,  3  Scam 75 

Bellwood  v.Wetherell,  1  Younge  &  Col.  315 

Benedict  v.  Gilman,  4  Paige,  Ch 358 

Benedict  v.  Lynch,  1  Johns.  Ch.  R 318 

Benkert  v.  Benkert,  32  Cal 497 

Beuneson  v.  Thayer,  23  111 580 

Bennett  V.  Lee,  2  Atk 254 

Bennett  v.  Wolf  oik,  15  Geo 269 

Bennington  Iron  Co.  v.  Campbell,   2 

Page,  Ch.  R 152,  169 

Benson  v.  Le  Roy,  4  Johns.  Ch 398 

Bentley  v.  Phelps,  2  W.  &  M 351 

Bently  v.  Cournan,  6  Gill  &  J 153 

Benton  v.  Benton,  1  Day 487 

Benzein  v.  Lovelass,  Cam.  &  Nor 169 

Berchett  v.  Boiling,  5  Munf 323 

Berckmans    v.    Berckmans,   2  C.    E. 

Greene,  N.  J 514 

Bergen  v.  Bergen,  22  HI. .  .513,  514,  517,  522 

523 

Berger  V.  Potter,  32  HI  102 

Berkley  V.  Ryder,  2  Ves 314 


TABLE   OF   CASES   CITED. 


735 


Berryman  v.  Graham,  21  N.  J.  Eq 312 

Besimer  v.  The  People,  15  Ul 74 

Basse  V.  Becker,  51  111 89 

Bettes  V.  Dana,  2  Sumner,  R 237 

Betz  V.  Betz,  2  Rob.  N.  Y 510 

Biglow  V.  Bush,  6  Paige,  Ch.  R 374 

Bignall  v.  Atkins,  G  Mad 205 

Billingslea  v.  Gilbert,  1  Bland 140 

Bingham  v.  Cabot,  3  Dall 42 

Bingham  v.  Dawsou,  Jacob 254 

Binks  V.  Binks,  2  Bligh 222 

Binney'8  Case,  2  Bland 139,  141 

Birch  V.  Haynes,  3  Mer 335 

Bird  V.  Bird,  Wright,  Ch 493 

Birdsall  v.  Colls,  2  Stockt.  Ch 342 

Birkby  v.  Birkby,  15  111 503 

Birley  v.  Staley,  5  Gill  &  J 43,  401 

Bishop  V.  BrecklesB,  1  Hoff.  Ch  339 

Bishop  of  London  v.  Webb,  1  P.  Wms.  566 
Bishop    of    Winchester    v.    Wolgar,  3 

Swanst 565 

Bishop  of  Winchester  V.  Beaver,  3  Ves..  357 
Bishop  of  Winchester  v.  Paine,  11  Vea    368 

Bishop  V.  Witherel,  9  Wall.  U.  S 80 

Blain  v.  Harrison,  11  111 466 

Blaisdell  v.  Stevens,  16  Vt 135 

Blake  v.  Foster,  2  Molloy 253 

Blakeney  V.  Dufour,  15  Beay 340 

Blount  V.  Garen.  3  Hey.  100 

Blant  V.  Tomlin,  27  111 324 

Board,  etc.  v.  Grcenbaum,  39  111 187 

Board  of  Supervisors  vs.  Henneberry, 

41  111 47 

Boeve  v.  Skipwith,  1  Eq.  Ca.  Ab 205 

Bogardus  v.  Trinity  Church,  4  Paige, 

Ch 117,  118,  127,  128 

Bohan  v.  Galoway,  13  111 62 

Bonner  v.  Peterson,  44  III 458,  467,  477 

Boomer  v.  Cunningham,  22  HI 318 

Borton  v.  Scheffer,  21  Gratt.  Va 318 

Boston  V.  Nichols  88,  321 

Botsford  V.  O'Conner,  57  111. . ; 75,  76 

Bottorf  V.  Conner,  1  Blackf 103,  108 

Bougher  v.  Miller,  Wright  195 

Bow  V.  Britten,  2  Chicago  Legal  News.    41 

Bowan  v.  Gross,  4  Johns.  Ch  143 

Bowie  V.  Bowie,  3  Md.  Ch.  Decis 510 

Bowie  V.  Minter,  2  Ala 204,  225 

Bowles  V.  McAllen,  16  HI 426,  536 

Bowles  V.  South,  Hardin 253 

Bowman  v.  McLaughlin,  58  Maine 98 

Bowman  v.  Wettig,  39  111 175 

Bowman  v.  Wood,  41  111 90 

Bowyer  v.  Bright,  13  Price 212 

Bowyer  v.  Pitchard,  11  Price 290 

Boyd  v.  Boyd,  Harper,  S.  C.  Eq 526 

Boyd  v.  Boyd,  66  Penn.  St.  R 550 

Boyd  v.  Hoyt,  5  Paige,  Ch 49,  402 

Boyd  v.  Magruder,  2  Rob.  Va 324 

Boyland,  v.  Boyland,  18  HI . .     ....  75,  76 


Boyles  v.  McMurphy,  55111 462 

Boy n ton  v.  Rawson,  1  Clarke .  403 

Boze  V.  Davis,  14  Texas 323 

Bozman  v.  Dronghan,  3  Stew 196 

Bracken  v.  Kennedy,  3  Scam 338,  341 

Bracken  v.  Martin,  3  Yerg 230 

Bradford  v.  Geiss,  4  Wash.  C.  C.  R. . .     134 

Hradish  v.  Gee,  Ambl 200,  264 

Bradshaw  V.  Outrani,  13  Ves 355,  373 

Bradshawv.  Garrett,  1  Porter 249,  254 

Brady  v.  Anderson,  24  111 575,  580,  591 

Brady  v.  Waldron,  2  Johns.  Ch....564,  565 

Brandleigh  v.  Ord,  1  Atk 295 

Brashier  v.  Gratz,  6  Wheat 319 

Brattle  v.  Waterman,  4  Sim 172 

Breckenridge  v.  McCormick,  43  HI 613 

•Bree  v.  Bree,  51  111 89,  187 

Brewer  v.  Bowman,  3  J.  J.  Marsh 250 

Brewster  v.  Power,  10  Paige,  Ch. . .  .397,  399 

Bnckerhoff  v.  Brown,  6  Johns.  Ch 105 

Bridges  v.  Robinson,  3  Mer 333 

Briggs  V.  Briggs,  20  Mich 503 

Briggs  V  Gear,  3  Gilm 253 

Briggs  V.  Kaufman,  2  Mich.  N.  P 390 

Briggs  V.  Morgan,  3  Phill 487 

Bright  V.  Bright,  41  111 325 

Briguardello  v.  Gray,  1  WalL  U.  S.  R. .  200 

Brill  V.  Stiles,  35  111 99,  ICO,  103 

Brinckerhoff  V.  Lansing,  4  Johns.  Ch..  368 
Broadstreet  V.  Broadstreet,  7  Mass....  492 
Broadwell  v.  Broadwell,  1  Gilm.. .  .318,  323 

Brockett  v.  Brockett,  3  How.  U.  S 190 

Brockman  v.  Aulger,  12  111 183 

Brockway  v.  Copp,  3  Paige,  Ch 101,  133 

Broddus  v.  Ward,  8  Mo •....-...  330 

Brook  v.  Mead,  Walk.  Ch 172 

Brooks  v.  Barrett,  7  Pick 553 

Brooks  V.  Byam,  1  Story 134,  135,  158 

Brooks  V.  Gibbons,  4  Page,  Ch 105,  401 

Brown  v.  Bell,  4  Hey 306 

Brown  v.  Brown,  1  Hagg 487 

Brown  v.  Brown,  22  Mich 533 

Brown  v.  Cannon,  5  Gilm 319,  322 

Brown  v.  Edsall,  1  Stockt.  N.  J 269 

Brown  v.  Gaffney,  28  111 351 

Brown  v.  Gaffney,  32  HI 359 

Brown  v.  Haff,  5  Paige,  Ch 556,  557 

Brown  v.  Haines,  12  Ohio 319 

Brown  v.  Higden,  1  Atk 203 

Brown  v.  Hogle,  30  111 100,  101 

Brown  v.  McDonald,  1  Hill,  Ch 57 

Brown  V.  Moore,  26  111 582 

Brown  v.  Pitney,  39  111 463 

Brown  v.  Powell,  45  Ala 98 

Brown  v.  Ricketts,  3  Johns.  Ch 402 

Brown  v.  Welch,  18  111 165 

Brownfield  v."  Brownfield,  43  111  549 

Brownfield  v.  Brownfleld,-58  111 614 

Browning  v.  Bettis,  8  Paige,  Ch 399 

Brownlee  v.  Lockwood,  20  N.  J.  Eq 100 


736 


TABLE   OF   CASES   CITED. 


Brownson  v.  La  Crosse  <fc  Milwaukee 

R.  R.  Co.  2  Wall.  U.  8 313 

Brownsword  v.  Edwards,  2  Ves.  ..  105,  130 

Bruen  V.  Bruen,  43  111 45 

Bruere  v.  Wharton,  7  Sim 350 

Brannenmeyer  v.  Buhre,  32  111 570 

Brush  V.  Vandenberg,  1  Edw.  Ch 323 

Bryan  v.  Blythe,  4  Blackf 50 

Buchanan  v.  Hart,  31  Texas 570 

Buchter  V.  Dew,  39  111 583 

Buck  V.  Beekly,  45  111 92,  614 

Buckholtz  V.  Buckholtz,  24  Geo 509 

Buckingham  v.  Peddicord,  2  Bland 135 

Buckland  v.  Goddard,  36  111 96 

Buckley  v.  Corae,  Saxon,  N.  J 164 

Buckley  v.  Starr,  2  Day 49 

Buflfalow  V.  Buffalow,  2  Ired.  Ch. . . .  48,  102 

Bugbee  v.  Sargeant,  23  Maine 49,    65 

Bulkley  v.  VanWyck,  5  Paige,  Ch 141 

Buloid  V.  Miller,  4  Paige,  Ch.  R...  158,  161 

Buntain  v.  Wood,  29  111 142 

Burch  V.  Brown,  46  Mo 550 

B-urdell  V.  Burdell,  2  Barb 510 

Burger  v.  Potter,  32  111 115 

Burgess  v.  Wheats,  1  Blacks 308 

Burke  v.  Smith,  15  111 164,  165,  203,  205 

Burkeley  v.  Dunbar,  1  Anst.  R 153 

Burkhart  v.  Reisig,  24  111 576,  579,  591 

Burn  V.  Poang,  3  Dessau 249 

Burnett  v.  Anderson,  1  Mer 280,  283 

Burnett  v.  Lester,  53  111 49,  51,  102 

Burnett  v.  Sanders,  4  Johns.  Ch.  R.  277 

278 

Berney  v.  Chambers,  Bumb 152 

Burney  v.  Morgan,  1  Sim.  &  Stu 400 

Burnham  v.  Rangeley,  1  W.  &  M.  C.  C.R.  115 
Burnley  v.  Jeffersonville,  3  McLean  . . .  135 

Burr  V.  Burr,  7  Hill,  Ch 532 

Burr  V.  Burr,  10  Paige,  Ch 526,  532 

Barrall  v.  Raineteaux,  2  Paige,  Ch.  R. .  151 

Burrell  v.  Leslie,  6  Paige,  Ch 403 

Burroughs  V.  Oakley,  3  Swanst...  a33,  334 

Burrows  v.  Taylor,  Wright 228 

Burt  V.  Rynex,  48  Mo 189 

Burtis  V.  Burtis,  1  Hopk.  Ch 487 

Burton  v.  Black,  32  Geo 280 

Burton  V.  Todd,  1  Swanst 333 

Bnsfleld  v.  Solomons,  9  Ves 314 

Bush  V.  Connelly,  33  111 591 

Bushnell  v.  Bishop  Hill  Colony,  28  III. .  175 

Butler  V.  Catling,  1  Root 133 

Buttrick  v.  Holden,  13  Met 321 

Byrne  V.  Byrne,  3  Texas 503 


c 


Cabeen  v.  Gordon,  1  Hill,  Ch 818 

Cadwallader  v.  Granville  Alexrtndrian 
Society,  11  Ohio 406 


Cady  V.  Porter,  55  Barb.  N.  T.  279,  280,  281 
Caldwell  v.  Blackwood,  1  Jones,  N.  0. 

Eq 105 

Caldwell  V.  Boyer,  3  Atk 206 

Caldwell  v.  Myers,  Hardin 322 

Calhoun  v.  Powell,  42  Ala 103 

Caller  v.  Shields,  2  Stew.  &  Port.  ai9,  251 

252,  253 

Calmes  v.  Ament,  1  A.  K.  Marsh. 250 

Calverley  v.  Williams,  1  Ves.  Jr 308 

Camblat  v.  Tapcry,  2  La.  An 340 

Campbell's  Case,  2  Bland 403 

Campbell  v.  Hannan,  43  111 183 

Campbell  v.  McCanham,  41  111 538 

Campbell  v.  Misier,  4  Johns.  Ch 201 

Campbell  v.  Morrison,  7  Paige,  Ch 61 

Campbell  v.  Solomons,  1  Sim.  <fc  Stu..  291 

Canfleld  v.  Morgan,  Hopk.  Ch 291 

Cann  v.  Cann,  1  P.  Wms 296 

Cannon  v.  Norton,  14  Vt 65 

Cannon  v.  Watson,  1  How.  Miss 89 

Capner  v.   Flemington   Mining   Co.  2 

Green,  Ch 565 

Carmichael  v.  Reed,  45  El 649 

Carnochan  v.  Christie,  11  Wheat 306 

Carpenter  v.  Mutual  Safety  Ins.  Co.  4 

Sandf .  Ch 822 

Carr  v.  Duval,  14  Pet 321 

Carr  v.  Fielden,  18  111 144,  145 

Carre  v.  Carre,  2  Yeates 490 

Carroll  V.  Parren,  1  Bland 256 

Carroll  v.  Saflford,  3  How.  U.  8 635 

Carter  v.  Lewis,  29  111 89 

Carter  v.  Longworth,  4  Ham 101 

Cartwright  v.  Clark,  4  Met 307,  312 

Cartwright  v.  Green,  8  Ves 105 

Cary  v.  Ector,  7  Geo 143 

Cary  v.  Hatch,  2  Edw.  Ch 60 

Cassell  V.  Ross,  33  HI 142 

Cassidy  v.  Meacham,  3  Paige,  Ch..  404,  405 

Caton  V.  Willis,  5  Ired.  Ch 48 

Catton  V.  Carlisele,  5  Mad 204-214 

Cawthorn  v.  Chalic,  2  Sim.  &  Stu 105 

C.  B.  &  Q.  R.  R.  Co.  V.  Dunn,  52  HI....  121 
Central  Pacific  R.   R.  Co.   v.  Dyer,  1 

Sawyer 637 

Chaffin  V.  Heirs  of  Kimball,  23111 145 

Chalmers  v.  Chalmers,  4  Gill.  <fc  J 46 

Chamberlain  v.  Blue,  6  Blackf 333 

Chambers  v.  Goldwin,  9  Ves 357 

Chambers  v.  Rowe,  36  HI.  ..56,  141, 171,  324 

Chambers  v.  Warren,  13  111 277 

Champlin  v.  Champlin,  2  Edw.  Ch 134 

Chandler  v.  Barrett,  21  La.  An 650 

Chandler  V.  Pcttit,  1  Paige,  Ch 203 

Chapin  v.  Coleman,  11  Pick 135 

Chapman  v.  Beach,  2  Jac.  &  W 841 

Chapman  v.  Turner,  1  Atk 114 

Chase's  Case,  1  Bland 100 

Chase  v.  Palmer,  12  Shep.  54 64 


TABLE   OF   CASES   CITED. 


737 


Cherry  v.  Legh,  1  Bligh,  N.  S 315 

Chicago  Artesian  Well  Co.  v.  Conn.  M. 

Life  Ins.  Co.  57  111 306 

Chicago  Dock  Co.  v.  Kinzie,  49  III 466 

Chichester  v.  Vase,  1  Munf 269 

Chickering  v.  Hatch,  3  Sum 351 

Chicott  V.  Lequnee,  2  Ves 43 

Child  V.  Brace,  4  Paige,  Ch 401 

Childress  v.  Holland,  3  Hey 320 

Chipman  v.  Thompson,  Walker,  Ch 65 

Cholmley  v.  Duchess  ot  Oxford,  2  Atk.  368 
Cholmondeley  v.  Clinton,  2  Jac.  &  W. 

354,  377 

Choteaa  v.  Rice,  1  Minn 99,  204,  214 

Chrishmau  v.  Sutphen,  42  111 359 

Christian  v.  Crocker,  25  Ark 102 

Christianherry    v.    Christianberry,    8 

Blackf 491,  510 

Christie  V.  Hale,  46  HI 535 

Chute  V.  Dacre,  1  Eq.  Ca.  Ab 153 

City  Bank  v.  Bangs,  2  Paige,  Ch.  288,  290 

291,  293 

Claiborne  v.  Creditors,  18  La.  An 339 

Claiborne  v.  Gross,  7  Leigh 403 

Clamorgan  v.  Guisse,  1  Mo 51 

Clapp  V.  Clapp.  97  Mass 491,  510 

Clare  v.  Clare,  4  C.  B.  Green,  N.  J 514 

Clare  V.  Wordell,  2Vern 241 

Clark  V.  Banner,  t  Dev.  &  Bat.  Ch 897 

Clark  V.  Bell,  2  B.  Monr 45 

Clark  V.  Boyle,  51  HI 599 

Clark  V.  Byne,  13  Ves 282 

Clark  V.  Henry,  2  Cow 358 

Clark  V.  Lott,  11  111 484,  486,  490 

Clark  V.  Phelps,  6  Johns.  Ch 99,  100 

Clark  V.  Quackenboss,  28  HI 37 

Clark  V.  Keins,  12  Gratt.  Va 822 

Clark  V.  Reyburn,  8  Wallace 391 

Clarkv.  Savier, 7 Watts 322 

Clark  V.  Thompson,  47  HI 145 

Clarkv.  Tinsley,  4  Rand. 162 

Clarke  v.  Periam,  2  Atk 43 

Clarkson  v.  Bowy er,  2  Vem 356 

Clarkson  v.  De  Peyster,  3  Paige,  Ch.  49,  400 

Clay  V.  Turner,  3  Bibb 319 

Claycomb  V.  Cecil,  27  111 580 

Clayton  v.  Frazier,  33  Texas 324 

Clearwater  v.  Kimler,  43  HI 550 

Clement  V.  Reid,  9  S.  &M 818 

Clement  v.  Wheeler,  25  N.  H 564 

Cleveland  V.  Benton,  11  Vt 318 

Clifton  V.  Haig,  4  Dessau 166 

Clitherall  v.  Ogilvie,  1  Dessau 317 

Cloud  v.  Hamilton,  3  Yerg 306 

Cloud  V.  Whitman,  2  Har 195 

Clough  V.  Radcliffe,  1  De  Qex  AS 839 

Clowes  V.  Clowes,  9  Jur 517 

Clnte  V.  Boal,  8  Paige,  Ch 399 

Coale  T.  Barney,  1  Gill  &  J  319 

Coatee  V.  Woodworth,  13  HI... 103,  351,  569 
47 


Cobum  V.  Tyler,  41  111 679 

Cochrane  v.  O'Brien,  2  Jones  &  Lft.  T.  286 

Cock  V.  Evans,  Yerg.  R 164 

Cocke  V.  Gilpin,  1  Rob.  Va 196 

Cockrell  V.  Gnrley,  26  Ala 43 

Cody  r.  Hough,  20  111 175 

Coe  T.  Turner,  5  Conn 49 

Coffin  V.  Coffin,  Jac.  R. 564 

Coffin  V.  Cooper,  14  Ves 334 

Coffin  V.  Cooper,  6  Ves 51,  160 

Cohen  V.  Carroll,  5  S.  &  M 398,  400 

Colclough  V.  Evans,  4  Sim 164,  211 

Cole  V.  Choteau,  18  111 178,  181 

Cole  V.  VanRiper,  44  HI 121 

Coleman  v.  Lyne,  etc. ,  4  Rand. 163 

Coleman  v.  Moore,  3  Litt 813 

Coles  V.  Forrest,  10  Bear 373 

Collier  V.  Collier,  1  Dev 509 

Collins  V.  Carlile,  13111 876 

Collins  V.  Collins,  19  Ohio  St.  R 535 

Collins  V.  Lavenberg,  19  Ala 204 

Collinsv.  Riggs,  14  Wall 854 

Collins  V.  St.  Clair,  51  111 614 

Collins  V.  Townley,  21  N.  J.  Eq 550 

Colson  V.  Thompson,  2  Wheat 821 

Colt  V.  Wollaston,  2  P.  Wms 339 

Colton  V.  Earl  of  Carlisle,  5  Mad 236 

Colton  V.  Ross,  2  Paige,  Ch 58 

C.  &  N.  W.  R.  R.  Co.  V.  Nichols,  57  HI.  103 
Columbus  Mach.  M.  Co.  v.  Dorwin,  25  HI  591 

Combs  V.  Proud,  1  Ch.  Cas 252 

Comber's  Case,  1  P.  Wms 234 

Commack  v.  Johnson,  1  Green,  Ch 40S 

Commercial   Bank    of    Lake   Erie   v. 

Meach,  7  Paige,  Ch . .  401 

Commercial   Mutual   M.    Ins.    Co.   v. 

Union  Mutual   Ins.  Co.   19  How. 

U.  S 322 

Comstock  V.  Purple,  49  111 451 

Conant  v.  Sparks,  3  Edw.  Ch. 405 

Conesey  v.  Conesey,  60  111 502,  503,  508 

Congden  v.  Lee,  3  Edw.  Ch 398 

Conklin  V.  Foster,  57  HI 538 

Conley  v.  Good,  Breese 98 

Conner  v.  Board   of   Supervisors,   10 

Minn 106 

Conner  V.  Drake,  1  Ohio  St.  R. 324 

Conover  v.  Warren,  1  Gilm 581 

Contee  v.  Dawson,  2  Bland 63,  140 

Conway  v.  Cable,  37  HI 535 

Conwell  v.  Claypool,  8  Blackf 160 

Conwell  v.  McCowen,  53111 138 

Cook  V.  Arnham,  3  P.  Wms 263 

Cook  V.  Bamficld,  3  Swanst 265 

Cook  V.  Bay,  14  How.  Mise 19T. 

Cook  V.  Hadley,  Cooke 63 

Cook  V.  Heald,  21  111 691 

Cook  V.  Martyn,  2  Atk 68,  166 

Cook  V.  Rofinot,  21  HI 591 

Cook  V.  Vick,  2  How.  Miss.  R 324 


738 


TABLE   OF   CASES   CITED. 


Cook  T.  Vreeland,  21  Dl 579 

■C!ook  V.  Wood,  24  m 91 

Cooley  V.  Scarlett,  38  ni 37, 187,  198 

■Cooper  V.  Davis,  15  Conn 565 

Cooper  V.  De  Tastel,  1  Taml 283 

-Cooper  V.  McCloo,  16  111 569 

Cooper  V.  Tyler,  46  III 322 

Cooth  V.  Jackson,  6  Ves 129 

■Copen  V.  Flesher,  1  Bond. .  .99,  164,  204,  214 

Copous  V.  Kauffman,  8  Paige,  Ch 402 

Copper  V.  Wells,  Saxon 324 

Coquilland  v.  Snydam,  8  Blackf 143 

Corby  v.  Bean,  44  Mo 47 

Corey  v.  Croskey,  57  HI 577 

Corey  v.  Gertaken,  2  Mad 193 

Corgan  V.  Anderson,  30  111 177,  178 

Corneal  v.  Banks,  10  Wheat 195 

Cornell  v.  Bostwick,  3  Paige,  Ch 96 

Cornell  v.  Pierson,  4  Halst.  Ch 351 

Corning  V.  White,  2  Paige,  Ch....  401,  404 

Cost  V.  Rose,  17  111 75,  144,  145,  438 

Coster  V.  Murray,  5  Johns.  Ch 102 

Cottington  v.  Fletcher,  2  Atk.  R 275 

Cotton  V.  Ulmer,  45  Ala 550 

Conlson  v.  City  of  Portland,  1  Deady..  536 

Coulson  V.  Walton,  9  Pet 320 

Countess  v.  Gifferd,  2  P.  Wins.  R 152 

County  of  Green,  v.  Bledsoe,  12  111. . . .  181 

Cowdin  V.  Cram,  3  Edw.  Ch 556,  560 

Cowle  V.  Varnum,  37  HI 580 

Cowles  V.  Buchanan,  3  Ired.  Ch.  R.43, 46,    55 

Cowles  V.  Whitman,  10  Conn 322 

Cozine  v.  Graham,  2  Paige,  Ch 114 

Craig  V.  Hone,  2  Edw.  Ch 398,  399 

Craig  V.  Leiper,  2  Yerg 330 

Craig  V.  The  People,  47 111..  137, 158,  165,  566 

Crane  v.  Decamp,  21  N.  J.  Eq 319 

Creeley  v.  Bay  State  Brick  Co.,   103 

Mass 1.36 

Crews  V.  Burcham,  1  Black,  U.  S 537 

Crocker  v.  Higgius,  7  Conn 62 

Crocket  v.  Lee,  7  Wheat 45,  46,  195 

Crompton  v.  Womb  well,  4  Sim. . . .  203,  204 

Cronau  v.  Frizcll,  42  111 88,    89 

Crook  V.  The  People,  16  111 614 

Crook  V.  Andrews,  40  N.  Y 536 

Croskey  v.  Corey,  48  El . . .  578,  580,  581,  583 
Croskey  v.  Northern  Manuf.  Co.  48  111.  306 

582,  583 

Cross  V.  DeValle,  1  Wall,  U.  S 307 

Crouch  V.  Hicken,  1  Keen 106 

Crouch  V.  Puryear,  1  Rand 565 

Crowder  v.  Turney,  3  Cald.  Tenn 108 

Crutchfleld  v.  Patten,  44  Geo 305 

Cull  cm  V.  Batre,  2  Ala 225,  373 

Cullom  V.  Erwin.  4  Ala .306 

Cnmmings  v.  Wagoner,  7  Paige,  Ch 620 

Cunningham  v.  Rogers,  14  Ala 204 

Cunningham  v.  Stelle,  1  Litt 89 

Curtiss  V.  Brown,  29  111 570 


Curtias  V.  Martin,  20  111 181 

Cnshman  v.  Sutphen,  42  El 880 

Cutlet  V.  McDonald,  13  La.  An 61 

Cutter  V.  Jones,  52  III 874 

Cutting  Y.  Gilbert,  5  Blatchf .  C.  C 51 

D 

Dabbs  V.  Dabbs,  27  Ala 196 

Dagley  v.  Crump,  1  Dick 152 

D'Aguilar  v.  D'Aguilar,  1  Hagg.  Ch.  R. 

3  Eng.  Eccl.  R 517 

Dailey  v.  Dailey,  Wright,  O.  Ch 492 

Dais  V.  Bouchaud,  10  Paige,  Ch 102 

Dakin  v.  Cope,  2  Russ 334 

Dalton  V.  Thompson,  1  Dick 297,  299 

Damond  v.  Mayer,  2  Johns.  Ch.  R 140 

Dana  v.  Banks,  6  J.  J.  Marsh 397 

Dancer  v.  Evett,  1  Vern 262 

Danforth  v.  Smith,  23  Vt 57 

Daniel  v.  Bishop,  13  Price 140 

Daniels  v.  Taggart,  1  Gill  &  J 127,  311 

Darcey  V.  Hall,  1  Vern 358 

Darcy  v.  Lake,  46  Miss 49,  102 

Davenport  V.  Farrer,  1  Scam.. 457,  458 

David  V.  David,  27  Ala 502 

Davies  v.  Davies,  55  Barb 510 

Davies  v.  Williamp,  1  Sim. 105 

Davis  V.  Collier,  13  Geo 133 

Davis  V.  Davidson,  4  McLean 139 

Davis  T.  Davis,  19  111 491,  509 

Davis  v.  Davis,  2  Keen 99 

Davis  V.  Davis,  30  111 182,  513 

Davis  V.  Harrison,  4  Litt 326 

Davis  V.  Leo,  6  Ves 563 

Davis  V.  Mapes,  2  Paige,  Ch.  R. . . .  140,  160 

Davone  v.  Fanning,  4  Johns.  Ch 50 

Dawson  v.  Dawson,  7  Ves 557 

Dawson  v.  Pilling,  16  Sim 114 

Dawson  v.  Sadler,  1  Sim.  &  Stu 101 

Day  V.  Day,  3  Green,  Ch 492 

Day  V.  Perkins,  2  Sandf .  Ch 376 

Day  V.  Potter,  9  Paige,  Ch.  R 234,  23'" 

Dean  v.  O'Meara,  47  111 438,  444 

Dean  v.  Smith,  23  Wis 556,  557 

Deare  v.  Attorney  Gen.  1  Young  &  Col..  273 

Deatley  v.  Murphy,  3  A.  K.  Marsh 46 

Decordova  v.  Smith,  9  Texas    320 

Deichman  v.  Deichman,  49  Mo 227 

Deininger  v.  McConnell,  41  HI 175 

Delahay  v.  Clement,  3  Scam 581 

Delahay  v.  McConnel,  4  Scam 351 

De  la  Hay  v.  De  La  Hay,  21  HI 503 

Dela  Vergnev.  Everston,  1  Paige,  Ch.  65 
Del.  &  H.  Canal  Co.  v.  Penn.  Canal  Co. 

21  Penn 195 

Dell  V.  Hale,  2  Younge  &  Call.  NewR..  100 

Delliber  v.  Dclliber,  9  Conn 509 

Demaree  v.  Driskell,  3  Blackf 171,  172 

398,  400 


TABLE   OF   CASES   CITED. 


739 


DemarcBt  v.  Wynkoop,  3  Johns.  Ch. . .  353 
Deuiuon  v.  Bassford,  7  Paige,  Ch.  R...  140 

Dc.riny  v.  Filmer,  2  Freem 262 

Denny  V.  Oilman,  26  Maine 102 

Betiton  V.  Denton,  1  Johns.  Ch 557 

Derby  v.  Derby,  6  C.  E.  Greene,  N.  J..  514 

Derby  V.  Gage,  38  111 171 

Detillin  v.  Gale,  1  Him.  &  Stu 86 

Devanbagh  v.  Devanbagh,  5  Paige,  Ch.  488 
DevajTies  v.  Morria,  1  Milne  &  Craig,  227 

2;38 

Devereaux  V.  Cooper,  11  Vt 134 

Dew  V.  Clark,  1  Sim.  &  Stu 297 

Dewen  v.  Blake,  44  111 351 

De  Wolf  V.  Long,  2  Gilm 171 

DeWolf  V.  Pratt,  42  111 47,  165,  166,  324 

DeWolfe  v.  Long,  2  Gilm 327 

DeWolf e  v.  Strader,  26  111 351 

Dexter  v.  Arnold,  6  Mason.. .  249,  252,  253 
254,  260,  264,  265 

Dexter  v.  Arnold,  1  Sumner 356 

Dexter  v.  Arnold,  2  Sumner 186 

Dexter  v.  Arnold,  3  Sumner 353 

Dickenson  v.  Codnise,  11  Page,  Ch 197 

Dickie  V.  Carter,  42  111 548,  549 

Dickinson  v.  Morgan,  8  Dana 195 

Dickson  v.  Todd,  43  111 428 

Dilley  V.  Bernard,  8  Gill  &  J 46 

Dillon  v.  Francis,  Dick 60 

Dineley  v.  Dineley,  2  Atk 103 

Dingledine  v.  Hcrshman,  53  111 583 

Divilbliss  v.  Whitmire,  20  111 76 

Doble  V.  Potman,  Hardr 308,  314 

Dodge  V.  Perkins,  4  Mason 42,  115 

Bolder  v.  Bank  of  England,  10  Ves. . . .  158 

Donaher  v.  Prentiss,  22  Wis 281 

Donaldson  v.  Holmes,  23  111 577,  578 

Donne  v.  Lewis,  11  Ves 201 

Donoghue  v.  City  of  Chicago,  57  111 477 

Dormer  v.  Fortesque,  2  Atk..  100,  205,  276 

Dorsey  V.  Garey,  30  Md 569 

Dougherty  v.  Colgan,  6  Gill  &  J 358 

Dougherty  v.  Hampston,  2  Blackf 318 

Dougherty  v.  Morgan,  6  Monr 252,  259 

Douglas  V.  Evans,  1  Overton 88,  89 

Douglas  V.Sherman,  2  Paige,  Ch.R..  230,  241 

Douglas  V.  Wiggins,  1  Johns.  Ch 503 

Dow  V.  Chamberlin,  5  McLean 351 

Dowes  V.  McMichael,  6  Paige,  Ch.  113,  128 

130 

Downe  v.  Morris,  3  Hare 352 

Downing  v.  Palmater,  1  Monr 565 

Doyle  V.  Mnrphy,  22  111 569 

Doyle  V.  Teas,  4  Scam 318,  327 

Doyle  V.  Wiley,  15  111 177 

Drew  V.  Harman,  5  Price 357 

Driver  v.  Fortner,  5  Porter 57 

Droullard  v.  Baxter,  1  Scam 164,  165 

Drnry  v.  Molins,  6  Ves 228 

Duberry  v.  Petrie,  IS.  &  M.  Ch 397 


Duke  of  Cumberland  v.  Coddrington, 

3  Johns.  Ch 355 

Duman  v.  Pepper,  43  Geo 198 

Dumont  v  Ruepprecht,  38  Ala 339 

Duncan  V.  Charles,  4  Scam 98 

Duncan  t.  Duncan,  23  111 548 

Duncan  v.  Ingles,  Breese . .  267 

Duncan  V.  Morrison,  Breese  613 

Duncan  v.  Wickliffe,  4  Scam 326 

Duncan  v.  Wilson,  32  111 56,  142 

Dundant  v.  Redman,  1  Vern 105 

Dungey  v.  Angove,  2  Ves.  Jr 282,  284 

Dunham  v.  Eaton  &  H.  R.  R.  C.  1  Bond 

43,  45 
Dunlap  ▼.  Wilson,  32  111..  351,  352,  374,  375 
Dunnv.  Keegin,  3  Scam...90,  126,  127,  151 

Dunn  v.  McNaught,  38  Geo 342 

Dunning  v.  Dunning,  37  111. . . .  97,  201,  451 
Dunscomb  v.  Dunscomb,  2  Hen.  &  M.  570 

Dunyan  v.  Vatlier,  3  Blackf 400 

Durant  v.  Redman,  1  Vern 107 

Durbin  v.  Barber,  14  Ohio 340 

Burling  V.  Hammer,  20  N.J.  Eq.  49,  100,  102 

Dwen  v.  Blake,  44  111 358 

Dvright  v.  Humphreys,  3  McLean 60 

E 

Eager  v.  Price,  2  Paige,  Ch 399,  404 

Eager  v.  Price,  2  Paige,  Ch. ..  210,  215,  216 

Earle  v.  Holt,  5  Hare 99 

Earl  of  Bathurst  v.  Burden,  3  Bro.  Ch. 

Ca 565 

Earl  of  Portsmouth  v.  Fellows,  5  Mad.    52 

Earl  of  Suffolk  v.  Green,  1  Atk 296 

East  India  Co.  v.  Edwards,  18  Ves.  .282,  283 
East  India  Co.  v.  Hinchman,  1  Ves.  Jr.  107 

Easton  v.  Altum,  1  Scam 74 

Eberly  v.  Groff,  9  Harris 55 

Edgar  v.  Clevenger,  2  Green,  Ch 203 

Edmeston  v.  Lyde,  1  Paige,  Ch.  398,  400,  403 
Edmundson  v.  Moseby,  4  J.  J.  Marsh.  249 

Edwards  v.  Beaird,  Breese 70,  94 

Edwards  v.  Carroll,  2  Bro.  P.  C 263 

Edwards  v.  Chilton,  4  W.  Va 44 

Edwards  v.  Edwards,  Wright,  O.  Ch. . .  511 

Edwards  v.  Helm,  4  Scam 138 

Edwards  v.  Massey,  1  Hawks 45,  46 

Egremont  v.  Cowell,  5  Beav  44 

Egremont  V.  Hamilton,  1  B.  &  Beat...  234 

Eidenmuller  v.  Eidenmuller,  37  Cal 502 

Eldridge  v.  Jenkins,  3  Story 351 

Ellsworth  v.  Curtis,  10  Paige,  Ch.  R.  153,  154 

Ellzey  V.  Lane,  2  Hen.  &  M 250 

Elmendorf  v.  Delancy,  Hopk. 58 

Elston  V.  Blanchard,  2  Scam 47 

Embree  v.  Embree,  .53  111 497,  502 

Emerson  V.  Clayton,  111 121 

Emerson  v.  Dallison,  1  Ch 60 

English  V.  Poxall,  2  Pet 67 


740 


TABLE   OF   CASES   CITED. 


Ennor  Y.  Thompson,  46  111 351 

Enos  V.  Hunter,  4  Gilm 57 

Enos  V.  Hunter,  4  Gilm 556 

Ensign  v.  Colburn,  11  Paige,  Ch 565 

Ensworthv.  Lambert,  4  Johns.  Ch. .  205-206 

373 
Errington  v.  Attorney  General,  Bumb.  283 

Errissman  v.  Errissraan,  25  111 512,  523 

Estabrook  v.  Hapgood,  10  Mass 478 

Estep  V.  Watkins,  1  Bland 42,  45 

Eubank  v.  Hampton,  1  Dana 320 

Evans  v.  Billings,  5  Ala 166 

Evans  v.  Clement,  14  111 251,  252,  253 

Everett  v.  Winn,  1  S.  M.  Ch.  R 168 

Ewins  V.  Gordon,  49  N.  H 318 

Executors,  etc.  v.  Roberts,  1  Wash.  C. 

C.  R 128 

Ex  parte  Broadbent,  1  Mont.  &  A 340 

Ex  parte  Dunham,  29  Leg.  Int 404 

Ex  parte  McEl wain,  29  111 464 

Ex  parte  ^m\i'h,\^l\\ 557 

Ex  parte '^mmo,  1  Bailey,  Ch 570 

Eyere  v.  Dolphin,  2  Ball  &  B 129 

F 

Fahs  V.  Roberts,  54  111 203 

Fairthorne  v.  Weston,  3  Hare 341 

Fallon  V.  Railroad  Co.  1  Dillon 321 

Fallovces  V.Williamson,  lives.  229,233,  234 
Falls  V.  Carpenter,  1  Dev.  &  Bat.  Ch..  .320 
Fancher  v.  Ingraham,  6  Blackf. . . .  100,  101 
Farebrother  v.  Prattent,  Dan.  R. . .  282,  289 

Farley  v.  Blood,  10  Foster 279 

Farmers'  Loan  &  Trust  Co.  v.  Seymour, 

9  Paige,  Ch.  R 229 

Farnsworth  v.  Agnew,  27  III 96 

Famsworth  v.  Strasler,  12  HI 182 

Farrant  v.  Lovell,  3  Atk 563-564 

Farrt-ll  v.  McKee,36Hl 171 

Farrell  v.  Parlier,  50  111 385 

Farwell  v.  Meyer,  35  HI 165 

Fash  v.  Blake,  38  HI 177 

Fawkes  v.  Pratt,  1  P.  Wms 58 

Fay  V.  Jewett.  3  Edw.  Ch 160 

Feary  v.  Stephanson,  1  Beav.  Ch.  Pr. . .  206 

Felch  V.  Hooper,  20  Maine 65 

Fell  V.Brown,  2  Bro.  Ch.  R 356 

Fellows  V.  Fellows,  4  Cowen 135,  402 

Fellows  V.  Fellows,  8  N.  H 502,  503 

Fellows  V.  Shelmire,  5  Blackf 88,  89 

Ferguson  V.  Ferguson,  3  Sandf.  Ch.   ..  492 

Ferguson  v.  Paschall,  11  Miss 322 

Ferguson  v.  Sutphan,  3  Gilm 88 

Ferrie  v.  Ferris,  8  Conn 488 

Ferris  v.  McClure,  36  111 306 

Field  V.  Jackson,  2  Dick 566 

Field  V.  Ross,  1  Monroe 197 

Field  V.  Schieffelin,  7  Johns.  Ch..  307,  812 

813,  814 


Finch  V.  Lord  Winchelsea,  1  Eq.  Ca. 

Ab... • 227,  228 

Finch  V.  Martin,  19  HI 63 

Findlay  v.  Smith,  6  Munf 564 

Fish  V.  Miller,  5  Paige,  Ch 127 

Fisher  v.  Fisher,  54  111 75,  76,  144,  182 

Fisher  v.  Fisher,  32  Iowa 533 

Fisher  v.  Stone,  3  Scam 45,  103,  556 

Fishli  V.  Fishli,  2  Litt 532 

Fitch  V.  Boyd,  55  111 317,  318 

Fitch  V.  Creighton,  24  How.  U.  S 49 

Fitts  V.  Davis,  42111 535,  539 

Fitzhugh  V.  Lee,  Amb 296 

Fitzpatrick  v.  Beatty,  1  Gilm 321 

Fitzpatrick  v.  Beaty,  1  Gilm 44,  137 

Flack  V.  Holm,  1  Jac.  &  Walk 555 

Flagler  v.  Crow,  40  111 250 

Flint  v.  Field,  2  Anst 43,  44,    53 

Fleece  v.  Russell,  13  111 313 

Fleetwood  v.  Green,  15  Ves 334 

Fletcher  v.  Holmes,  32  Ind 374 

Fletcher  v.  Wilson,  1  S.  &  M.  Ch. .  306,  307 

Flinn  v.  Owen,  58111 '547,  548 

Fludyer  V.  Cocker,  12  Ves 334 

Fogg  V.  Johnston,  27  Ala 339,  340 

Foley  V.  Hill,  4  Milne  &  Craig 131 

Fonda  v.  Sage,  48  N.  T  536 

Foot  v.  Van  Raust,  1  Hill,  Ch.  R 186 

Foote  V.  Foote,  22  111 528 

Forbes  v.  Whitlock,  3  Edw 104 

Ford  V.  Ford,  104  Mass 502 

Ford  V.  Peering,  1  Vee.  Jr 99 

Forman  v.  Hanfray,  2  Ves.  &  B. .     340,  341 

Forney  v.  Perrell,  4  W.  Va 549 

Forni  v.  Tesson,  51  111. .   613 

Forrest  v.  Forrest,  3  Abbott,  N.  Y 5;J3 

Forrest  v.  Forrest,  5  Bosw 533 

Forrest  v.  Robinson,  4  Porter,  Ala 108 

Forsyth  v.  Baxter,  2  Scam 181 

Forth  V.  Town  of  Xenia,  54  111. . . .  187,  614 

Fobs  v.  Haynes,  31  Maine 133 

Foster  v.  Deacon.  6  Mad.  R 218 

Foster  v.  Hodgson,  19  Ves 102,  263 

Foster  v.  Hunt,  3  Bibb 167 

Foster  v.  Swasey,  2  W.  &  M.  C.  C 103 

Fowler  v.  Fowler,  4  Abbott,  N.  T 518 

Fowler  v.  Lewis,  3  A.  K.  Marsh 114 

Fowler  v.  Sanders,  4  Call  45 

Fraglcr  v.  Crow,  40  HI 200 

Frame  V.  Frame,  16111 200 

Francisco  v.  Hendricks,  28  111 464 

Franklin  v.  Keeler,  4  Paige,  Ch 161 

Franklin  v.  Wilkinson,  3  Munf 251 

Fraser  v.  Hart,  2  Strobh.  Eq 47 

Erasure  v.  Zimmerly ,  25  111 97 

Freake  v.  Horsley,  2  Freem 873 

Freeman  \ .  Freeman,  43  N.  Y 324 

Freeman  v.  Keagan,  26  Ark 47 

French  V.  Creath,  Breese 81 

French  v.  Dear,  5  Ves 60 


TABLE   OF   CASES   CITED. 


741 


Frisbie  V.  Ballance,  4  Scam 318 

Fryrear  v.  Lawrence,  5  Gilm 142 

Fuller  V.  Gibson,  2  Cox 283 

Fulton  V.  Railroad  Co.  1  Dillon 323 

Fulton  Bank  y.  Beach,  6  Wend 140 

Fulton  Bank  r.  Beach,  3  Paige,  Ch.  R. .  140 
Fulton  Bank  v.  N.  Y.  &  S.  Canal  Co.  4 

Paige,  Ch 203 

Furman  v.  Coe,  C.  C.  E  250 

G 

Gadsden  v.  Lord,  1  Dessau 269 

Gage  V.  Billings,  5(5  111 539 

Gage  V.  Chapman,  56  111 537,  539 

Gage  V.  Rohrback,  56  111 539 

Gaines  v.  Chew,  2  How.  U.  8 49 

Gaines  y.  Hennen,  24  How.  U.  S 490 

Gaines  v.  Relf,  12  How.  U.  8 490 

Galatian  v.  Erwin,  Hopk.  Ch..  98,  306,  307 

314 

Galbraith  v.  Galbraith,  5  Kansas 325 

Gallaher  v.  Roberts,  1  Wash.  CO 98 

Gardiner  v.  Bering,  1  Paige,  Ch 565 

Gardner  v.  Emerson,  40  III. . . .  249,  259,  353 

Gardner  v.  Gardner,  22  Wend 550 

Gardnerv.  Hall,  29  111 581 

Gardner  v.  Kersey,  89  Geo 46 

Garland  V.  Britton,  12  111 74 

Garlick  v.  Strong,  3  Paige,  Ch 106,  164 

Garner  v.  Beaty,  2  J.  J.  Marsh 313 

Garnett  v.   Mason,  2  Brockenbrough, 

2  R 321 

Garretson  y.  Weaver,  3  Edw.  Ch. .  339,  341 

Garrett  v.  Moss,  22  El 249,  251,  252 

Garrett  v.  Stevenson,  3  Gilm 578,  581 

Garth  V.  Cotton,  1  Dick 563 

Garth  V.  Wood,  2  Atk 215 

Gasque  v.  Small,  2  Strobh.  Eq 317 

Gault  V.  Hoagland,  25  111 90 

Gayle  v.  Singleton,  1  Stew 167 

Geizer  v.  Burk,  3  S.  &  M 141 

Gentry  v.  Thornberry,  3  Dana 254 

German  v.  Machine,  6  Paige,  Ch.  R 159 

Gcrmond  v.  Germond,  4  Pai-;e,  Ch 6.32 

Gerrish  v.  Black,  104  Mass 359 

Gaty  V.  Casey,  15  111 582 

Getchell  v.  Jewett,  3  Qrcenl 323 

Getzler  v.  Saroni,  18  HI.. .  249,  254,  256,  259 

Gibbs  V.  Blackwell,  37  111 324,  326 

Gibson  v.  Carson,  3  Ala 44,    46 

Gibson  v.  Chehone,  5  Pick .359 

Gibson  v.  Clarke,  2  V.  &  B 334,  335 

Gibson  v.  Golthwaite,  7  Ala 281,  286 

Gibson  v.  McCormick,  10  Gill  &  J 57 

Gibson  v.  Reece,  50  111 89,  194.  205 

Gibson  v.  Smith,  2  Atk 564 

Gilbert  V.  Colt,  Ilopk.  Ch 560 

Gilchrist  v.  Buie,  1  Der.  &  Bat  Ch.  R. 

250,  259 


Gilham  y.  Cairnes,  Breese 6S 

Gill  V.  Clagftt,  2  Gill  <t  J 50 

Gillett  V.  Hall,  13  Conn 204-214 

Gilmer  V.  Felhoun,  45  Miss 305 

Gilmore  v.  Nowland,  26  111 98 

Giles  V.  Giles,  1  Keen 215 

Glassington  t.  Thwaites,  2  Russ.  R.  153-154 

Glastonbury  v.  McDonald,  44  Vt 47 

Gleason  V.  Bisby,  1  Clarke 556 

Gleason  v.  Gage,  7  Paige,  Ch 401,  405 

Glegg  V.  Legh,  1  Bligh,  N.  S 315 

Glover  v.  Fisher,  11  111 320 

Gold  V.  Ryan,  14  HI 464 

Goodell  V.  Field,  15  Vt 818 

Gooding  V.  Reiley,  50  N.  H 369 

Goodman  v.  Whitcomb,  1  Jac.  &  W.. .  341 

Goodrich  V.  Hanson,  33  HI 181 

Gorden  v.  Hobart,  2  Sum 375 

Gorden  v.  Lowell,  21  Maine 403 

Gordon  v.  Gordon,  3  Swanst 43,  200 

Gore  v.  Cather,  23  111  458 

Gore  y.  Pettis,  4  Saund.  Ch 42 

Gorelin  v.  Holland,  3  Ired.  Ch 167 

Gorman  y.  McCullock,  5  Bro.  PC 264 

Goudy  v.  Hall,  36111 145 

Gould  V.  Barnes,  1  Dick 233 

Gould  V.  Ryon,  14  111 57 

Gould  V.  Womack,  2  Ala 318 

Gourley  v.  Woodbury,  43  Vt 427 

Gowan  v.  Jeffries,  2  Ashm 339,  342 

Gowkoski  V.  Day,  16  111 .323 

Graham  v.  Coape,  9  Sim 154 

Graham  V.  Elmore,  Harring.  Ch 90,  197 

Graham  v.  Skeken,  16  Legal  Iiit 351 

Grant  v.  Dnane,  9  Johns 353 

Grant  v.  Van  Schoonhoven,  9  Paige,  Ch.    64 

Graves  v.  Miles,  Harring.  Ch 204 

Gray  v.  Baldwin,  8  Blackf 565 

Gray  v.  Campbell.  1  Russ.  &  M'y 83 

Gray  v.  Davis,  3  J.  J.  Marsh ...    326 

Gray  v.  Hays,  7  Humph 196 

Gray  v.  Regan,  23  Miss.  Cush  135 

Greathouse  v.  Kipp,  3  Scam 103 

Green  v.  Barrett,  1  Sim 339 

Green  v.  Campbell,  2  Jones,  N.  C.  Eq. .    48 

Green  v.  Dodge,  6  Ham 80,    99 

Green  v.  Graig,  47  Mo 98 

Green  v.  Massie,  21  Gratt.  Va 268 

Green  v.  Mumford,  4  K.  1 279 

Greenleaf  v.  McDowell,  4  Ired.  Eq.  R..  249 

Greenman  v.  Harvey,  53  111 76 

Greenoughv.  Gaskell,  1  Mylne  &  Keen.  133 

Greenup  v.  Scwell.  18  111 444 

Greenup  v.  Strong,  1  Bibb 319 

Greenway  v.  Thomas,  14  111 397,  .398 

Greenwich  Bank  v.  Loomis,  2  Sandf. 

Ch.  R 250,  253 

Greenwood  v.  Atkinson,  4  Sim 204 

Gregg  V.  Renf  rews,  24  111 142 

Gregor  v.  Molesworth,  2  Ves 263 


r42 


TABLE   OF  CASES   CITED. 


Gregory  v.  Gover,  19  111 425 

Gregory  v.  Molesworth,  3  Atk 53,    54 

Gregson  v.  Oswald,  1  Cos 238 

Gresham  v.  Peterson,  25  Ark 555,  556 

Grey  v.  McCance,  11  111 615 

Giifliii  V.  Due,  1-2  Ala 197 

Grifflu  V.  Gnfflu,  21  Uow.  X.  Y 518 

Griffin  v.  Griffin,  8  B.  Monr 509,  526 

Griffin  v.  Lovell,  42  Miss 373 

Griffing  v.  Gibb,  2  Black,  U.  S .     99 

Griffith  V.  Frederick  Co.  Bank,    6  Gill 

&  J 318 

Griffith  V.  Ricketts,  3  Hare 230 

Griffith  V.  Wood,  11  Vee 138,  139 

Griggs  V.  Gear,  3  GOm. . ..  225,  249,  251,  254 

256,  260 

Griggs  V.  Thompson,  1  Geo.  Decia 101 

Grobb  \.  Cushman,  45  111 88, 174,  186 

Grnbb  v.  Crane,  4  Scam 88,    90 

Gni"lford  v.  Guilford,  9  Conn 487 

Guion  V.  Pickett,  42  Miss 670 

Gunnell  v.  Bird,  10  Wall.  U.  S.  R 183 

Gwin  V.  HarriB,  1  S.  &  M.  Ch 90 

H 

Haffner  v.  Dickson,  2  Har.  &  J 320 

Hagthorp  v.  Hook,  1  Gill  &  J 134 

Haines  v.  Beach,  3  Johns.  Ch  373 

Haines  v.  Haines,  6  Md 323 

Hale  V.  Wilkinson,  21  Gratt.  Va 317 

HaU  V.  DaviH,  44  111 145 

Hall  V.  Hall,  4  N.  H 509 

Hall  V.  Hall,  12  Beav 340 

Hall  V.  Huddeston,  2  P.  Wms 299 

Hall  V.  Towne,  45  111 195 

Hallock  V.  Hallock,  4  How.  N.  Y    532 

Hamersley  v.  Wickoff,  8  Paige,  Ch 61 

Hamilton  v.  Cummings,  1  Johns.  Ch. . .  536 

Hamilton  v.  Dunn,  22  LI 97,  575 

Hamilton  V.  Luberken,  51  111 354 

Hamilton  v.  Quigley,  46  HI 539 

Hamilton  v.  Stokes,  4  Price 339 

Hamilton  V.  Stuart,  59  111 614 

Hammond  V.  Hammond,  1  Clarke,  N.  Y.  519 

529,  557 

Hampton  v.  Hodges,  8  Ves 565 

Hand  V.  Dexter,  41  Geo 102 

Handly  V.  Young,  4  Bibb 195 

Handsand  v.  Hardy,  18  Ves 368 

Hankinson  v.  Lombard,  25  111 177 

Hanks  v.  Baber,  53  111 341 

Hanna  v.  Ratekin,  43  111 138,  306 

Hannum  v.  Thompson,  1  Scam 74 

Hansley  v.  Ilansley,  10  Ired.  Eq 514 

Happy  V.  Morton,  33  111 .570 

Happy  V.  Morton,  33  111 .     47 

Hardemann  v.  Harris,  7  How.  U.  S 161 

Harding  v.  Bickford,  Seaton  Decrees..  333 
Harding  v.  Handy,  11  Wheat 46,  186 


Harding  v.  Parehall,  56  HI 323 

Hardy  v.  Reeves,  4  Ves 102 

HarknesB  v.  Underbill,  1  Black 318 

Harmon  v.  Campbell,  30  111 88,    90 

Harmon  v.  Harmon,  16  111 503,  506 

Harper  V.  Ely,  56  111 371 

Harper  v.  Lamping,  83  Cal 339 

Harrington  v.  McLean,  1  Phillips,  N.  C. 

Eq 104 

Harrington  v.  Slade,  22  Barb.  N.  Y 204 

Harris  v.  Carter,  3  Stewart 62 

Harris  v.  Galbraith,  43  111 94,  103,  268 

Harris  v.  Harris,  Tur.  &  Russ 315 

Harris  v.  Ingledew,  3  P.  Wms 127 

Harris  v.  Johnson,  3  Young  &  Coll. ...  238 

Harris  v.  Knickerbocker,  5  Wend 44 

Harris  v.  Polland,  3  P.  Wms..  113,  233,  234 

237 

Harris  v.  Reese,  5  Gilm 140 

Harrison  v.  Armitage,  4  Mad 340 

Harrison  v.  Hogg,  2  Ves.  Jr 49,  104 

Harrison  v.  Lemon,  3  Blackf 351 

Harrison  v.  Nixon,  9  Pet 43 

Harrison  v.  Rumsey,  2  Ves 200 

Harrison  v.  Tennant,  21  Beav 339 

Harrison  v.  Urann,  1  Story 115 

Harsha  v.  Raid,  45  N.  Y 324 

Hart  V.  Lindsay,  Harring.  Ch 90,    91 

Hart  V.  McKeen,  Walker,  Ch 47,    50 

Hartwell  v.  Black,  48  111 325,  614 

Hartwell  v.  Townsend,  2  Bro.  P.  C 264 

Harvey  v.  Branson,  1  Leigh 197 

Harvey  v.  Sullens,  46  Mo 549,  550 

Harvey  V.  Thornton,  14111 873 

Harward  v.  St.  Clair  &  Monroe  Levee 

and  Drainage  Co.  51  111 51,    6,') 

Harwood  v.  Kirby,  1  Paige,  Ch 427 

Hasbrook  v.  Shuster,  4  Barb 204 

Haseltine  v.  Brickcy,  16  Gratt.  Va 281 

Haseett  v.  Ridgely,  49  HI 62,  428 

Hatch  V.  Bnffalo,  38  N.  Y 535 

Hatch  V.  Cobb,  4  Johns.  Ch.  R 318 

Hatcher  v.  Hatcher,  1  McMullen,  Ch...  .326 

Hathoway  V.  Foy,  40  Mo 279,  280 

Haven  V.  Wakefield,  39111 338 

Hawes  V.  Hawes,  33  HI 513 

Hawkins  v.  Clement,  15  Mich 100 

Hawkins  v.  Hunt,  14  111 325 

Hawkins  v.  Taber,  47  111 438 

Hawks  V.  Lands,  3  Gilm 181 

HawKy  v.  Clowes,  2  Johns.  Ch 564 

Hawley  v.  Cramer,  4  Conn 135,  269 

Hawley  v.  Sheldon,  Harring.  Ch 318 

Hayes  v.  Caldwell,  5  Gilm 133,  268,  275 

Hayes  v.  Johnson,  4  Ala 279 

Hayes  v.  Reese,  34  Barb 340 

Hays  V.  Borders,  1  Gilm 177 

Hays  V.  Mays,  1  J.  J.  Marsh 196 

Hay  thorp  V.  Hook,  1  Gill  &  J 65 

Hayward  v.  Carroll,  4  Har.  &  J 43,    tf 


TABLE   OF   CASES   CITED. 


743 


Heacock  v.  Durand,  42  111 164,  397 

Heartt  v.  Corning,  3  Paige,  Ch.  114,  126,  129 
Heath  v.  Erie  R.  R.  Co.  8  Blatchf . .  99,  100 

Heath  v.  Erie  R.  R.  Co.  9  Blatchf 268 

Hedden  v.  Hedden,  6  C.  E.  Greene,  N.  J.  492 

Hedrie  k  v.  Hcru,  4  W.  Va 325 

Hees  V.  Voss,  52  111 144,  182 

Henden  V.  Henden,  6  C.  E.  Greene 492 

Henderson  v.  Cummings,  44  111 102 

Henderson  v.  Hajs,  2  Watts 317 

Henn  v.  Walsh,  2  Edw.  Ch 338 

Henry  v.  Davis,  7  Johns.  Ch 358 

Henry  Co.  v.  Winnebago  Brain  Co.  62 

111 47,  103 

Henser  v.  Harris,  42  III 549 

Hepburn  v.  Auld,  5  Cranch 321 

Hepburn  V.  Dnnlap,  1  Wheat 3.34 

Herbert  v.  Hobbs,  3  Stewart 45 

Hercy  v.  Dinwdody,  2  Ves.  Jr 234 

Herrington  v.  Hubbard,  1  Scam 62 

Hester  v.  Hooper,  7  S.  <fe.  M 318 

Hester  v.  Weston,  1  Vern 106 

Hewett  V.  Dement,  57  111 161 

Hickenbotham  v.  Blackledge,  54  111. .  62,  100 
101,  145,  428,  438 

Hickey  v.  Forristal,  49  HI 107 

Hickman  v.  Cooke,  3  Humph 50 

Hickman  v.  Haines,  5  Gilm 37,    96 

Hickson  v.  Aylward,  3  Molloy 314 

Hiem  v.  Mill,  13  Ves 5" 

Higgen  v.  Ferguson,  14  111 578 

Hildyard  v.  Cressy,  3  Atk.  .128, 131, 132,  152 

Hill  V.  Adams,  2  Atk 357 

Hill  V.  Bishop,  25  111 576 

Hillv.  Hill,  10  Ala 503 

Hilliard  v.  Scoville,  42  111 427 

Hilliary  V.  Hurdle,  6  Gill 57 

Hilton  V.  Barrow,  1  Ves.  Jr 305 

Hindman  v.  Taylor,  Dick.  R 275 

Hitchell  V.  Hayne,  2  Sim.  &  Sta 281 

Hitt  V.  Ormsbee,  14  HI 142,  144 

Hoarv.  Harris,  11  Bl, 62,64,  5.36 

Hobart  v.  Abbott,  2  P.  Wms..  356,  857,  385 

Hobson  V.  McArthnr,  16  Pet 57 

Hodgen  v.  Guttery,  58  HI 35,  92,  5.38 

Hodges  V.  Mulliken,  1  Bland. .  249,  254,  255 

Hodges  V.  Smith,  1  Cox's  Ca 291 

Hodgins  v.  White,  2  Ired.  Ch 45 

Hodgkin  v.  Longden,  8  Ves.  R 273 

Hodle  V.  Healey,  Mad.  &  Geld 353 

Hodson  V.  Ball,  11  Sim 218 

Hodson  V.  Butteraeld,  2  Sim.  &  Stu. . .  158 

Hoffman  v.  Shields,  4  W.  Va 402 

Hogan  V.  Walker,  14  How.  U.  S 397 

Holbrook  v.  Prettymau,44  111 314 

Holbrook  v.  Winson,  2?  Mich 536 

Holbrook  v.  Worcester  Bank,  2  Curtis.  .353 

Holder  v.  Mount,  2  J.  J.  Marsh 225 

Holdsworth  v.  Holdsworth,  2  Dick 205 

Holleclan  v.  Johnson,  2  Geo.  Dccis 101 


Holligan  v.  C.  &  R.  I.  R.  R.  Co.  15  HI. .    47 

Hollingshead's  Case,  1  P.  Wms 234 

HoUingsworth  vs.  McDonald,  2  Har.  & 

J 249,  250,  255 

Hollister  v.  Hollister,  6  Barr 50» 

Uollovvay  v.  G.'.lloway,  51  111 548 

Holman  v.  Bank,  etc.  12  Ala 388 

Holman  v.  Uulman,  3  Dessau. 45 

Holmes  V.  Field,  11  111 64 

Holmes  v.  Holmes,  2  Lee 517 

Holmes  v.  Holmes,  Walk 510,  517 

Holmes  v.  Stateler,  57  111 613,  614 

Holmes  v.  Waring,  8  Price 108 

Holt  V.  Rogers,  8  Pet 316,  320 

Hony  V.  Hony,  1  Sim.  &  Stu 131 

Hood  V.  Inman,  4  Johns.  Ch 44,  45 

Iloofman  v.  Marshall,  J.  J.  Marsh 167 

Hook  V.  Dorman,  1  Sim.  &  Stu....  61,  105 

Hook  V.  Whitlock,  7  Paige,  Ch 102 

Hooper  V.  Bailey,  28  Miss 358 

Hoots  V.  Graham,  23  111 466 

Hopkins  v.  Granger,  52  111.  56,  HO,  141,  142 

536 

Hopper  v.  Hopper,  11  Paige,  Ch 508 

Horner  v.  Zimmerman,  45  III. .  249,  256,  259 

385,  39T 
Horton  v.  Baptist  Church,  etc.  34  Vt...  291 
Horwood  V.  Schmedcs,  12  Ves.  227,  228,  233 

Hough  v.  Coughlan,  41  111  318 

Houghton  V.  Murphy,  21  N.  J.  Eq 318 

Hovenden  v.  Lord  Anncslcy,  2  Sch.  & 

Lef 102,  2.34 

Hovey  v.  Holcomb,  11  111 47 

How  V.  Best,  5  Mad 103 

Howe  V.  Harvey,  8  Paige,  Ch 42 

Howe  V  Howe,  4  Nev 502 

Howe  V.  Rogers,  32  Texas 319,  324 

Howell  V.  Ashmore,  1  Stockt.  N.  J 269 

Howell  V.  Harvey,  5  Ark 340 

Howell  V.  Price,  1  P.  Wms 355 

Howett  V.  Selby,  51  111 138,  306,  582,  683 

Hoxie  V.  Carr,  1  Sum 378 

Hoy  V.  Hansborough,  1  Frcem.  Ch 322 

Hoyle  V.  Livesey,  1  Mer 193 

Hubbard  v.  Hubbard,  6  Mass 553 

Hubbard  v.  Turner,  3  McLean 388 

Hudson  V.  Hudson,  3  Rand 306,  307 

Huffacre  v.  Green,  4  Heyw 253 

Hughes  v.  Bloomer,  9  Paige,  Ch.  R. . . .  143 
Hughes  V.  Edwards,  9  Wheat    ....  351,  376 

Hughes  V.  Hughes,  19  Ala 502 

Hughes  V.  Jones,  3  Md.  Ch.  Decis 254 

Hull  V.  Peer,  27  111 102,  327 

Humphreys  V.  Hollis,  Jacob 229 

Humphreys  v.  Humphreys,  3  P.  Wms..    61 

Humphreys  V.  Incledon,  1  P.  Wms 230 

Hunt  V.  Holland,  3  Paige,  Ch.  R 169 

Hunt  V.  Wallii*,  6  Paige,  Ch 91 

Hunter  v.  Blauchard,  18  111 576 

Hunter  v.  Hatch.  45  111 351 


744 


TABLE   OF   CASES   CITED. 


Hunter  v.  Nelson,  6  Blackf 556 

Hard  v.  Case,  32  111 306,  307,  313 

HtBsey  V.  Dole,  S4  Maine 62 

Hatch  V.  Eustaphieve,  1  Clarke 69 

Hutchenson  V.  McNutt,  1  Ham 318 

Hatchinson  v.  Reed,  1  Hoff.  Ch. . . .  166-167 

Hyde  v.  Forster,  1  Dick.  R. . .   239 

Hyde  v.  Warren,  19  Ves 283 

Hyde  v.  Wroughton,  3  Mad 335 


Idler  V.  Routh,  3  How.  Misa..  249,  250,  253 

Ingersoll  v.  Ingcraoll,  42  Miss 89 

IngersoU  v.  Kirby,  Walker's  Ch 49 

Inglehart  v.  Crane,  42  111 306,  388 

Inglehart  V.  Gibson,  56  111 318,  319 

Irnham  v.  Child,  1  Bro.  Ch 43 

Irvin  V.  Bleakley,  67  Pa.  St.  R 327 

Irving  V.  De  Kay,  10  Paige,  Ch. . . .  312.  313 
lemael  v.  Parker,  13  111 318,  397,  405 


Jackson  V.  Ashton,  8  Pet 42 

Jackson  v.  Ashton,  11  Pet 46,  317 

Jackson  v.  Edwards,  22  Wend 320 

Jackson  v.  Edwards,  7  Paige,  Ch 481 

Jackson  v.  Honey  cat,  1  Overton 88 

Jackson  v.  Warren,  32  111 390,  428 

James  v.  Bird,  8  Leigh 57 

James  v.  Fisk,  9  Smedes  &  M 249 

James  v.  Hambleton,  42  111 579 

James  v.  Morgan,  36  Conn 98 

J.  G.  V.  H.  G.,  33  Md 488 

Jameson  v.  Conway,  5  Gilm 172 

Japling  V.  Stuart,  4  Ves 165 

Jaqaes  v.  Methodist  Church,  1  Johns. 

Ch 55 

Jaques  v.  M.  E.  Church,  17  Johns.  Ch. .  196 

Jaqaes  v.  Weeks,  7  Watts 351 

Jefferson  v.  Dawson,  3  Ch.  Cas 126 

Jefferson  Co.  v.  Ferguson,  13  111 165 

Jeneson  v.  Garden,  29  111 460 

Jenkins  v.  Eldridgc,  3  Story,  R 251 

Jenkins  v.  Freyer,  4  Paige,  Ch 229 

Jenkins  v.  Green,  1  A.  K.  Marsh 269 

Jenkins  v.  Hilcs,  6  Ves 334 

Jenkins  v.  Prewitt,  6  Blackf 258,  259 

Jenkins  v.  Prewitt,  7  Blackf 249,  254 

Jenkins  v.  Pye,  12  Pet 550 

Jennings  v.  Hopton,  1  Mad 334,  335 

Jennings  V.  Nugent.  1  Moll 291 

Jennings  v.  Smith,  29  111 462 

Jennings  v.  Springs,  1  Bailey,  Ch.   .     .  165 

Jcnonr  v.  Jenour,  10  Ves 200 

Jerome  v.  Jerome,  5  Conn   297,  2'.)9 

Jesson  V.  Brewer,  1  Dick 201 

JesoB  College  v.  Gibbs,  1  Young  &  Coll.  137 


Jevne  v.  Osgood,  57  111 108 

Jew  V.  Wood,  1  Craig  &  Phil 281,  283 

Jewett  V.  Cunard,  3  W.  <fe  M.  C.  C 351 

Johns  V.  Brown,  Scaton  on  Decrees....  215 

Johns  V.  Norris,  22  N.  J.  Eq 318 

Johnson  v.  Clendenin,  5  Gill.  &  J 556 

Johnson  v.  Dodge,  17  111 318 

Johnson  v.  Donnel,  15  111 252,  385 

Johnson  v.  Everett,  9  Paige,  Ch. . .  196,  197 

Johnson  V.  Johnson,  30  111 538 

Johnson  v.  Johnson,  14  Wend 509 

Johnson  v.  Johnson,  1  Edw.  Ch 509 

Johnson  v.  Johnson,  4  Paige,  Ch 509 

Johnson  V.  Johnson,  14  Cal 502 

Johnson  V.  Montgomery,  51  111...  4frl,  466 

Johnson  v.  Northey,  Prac.  in  Ch 222 

Johnson  v.  Pinney,  1  Paige,  Ch 83 

Johnson  v.  Rankin,  3  Bibb 63 

Johnston  v.  Johnston,  Wright,  Ch 511 

Johnston  v.  Mitchell,  1  A.  K.  Marsh...  320 

Joliffv.  Joliflf,  32  111 523 

Jones  v.  Bradshaw,  16  Gratt.  Va 269 

Jones  V.  Bush,  4  Harring 57 

Jones  V.  Earl  of  Strafford,  3  P.  Wms. . .  106 

Jones  V.  Frost,  3  Mad 104,  118 

Jones  V.  Garcia  D  1.   Riv.   1  Turn.  & 

Ruse 49 

Jones  V.  Hawkins,  3  Ired.  Eq.  R 134 

Jones  V.  Jones,  3  Atk 205,  206,  241 

Jones  V.  Jones,  2  Barb.  Ch.  R 517 

Jones  V.  Kenrick,  5  Bro.  C.  P 268 

Jones  V.  Lewis,  2  Sim.  &  Stu 96 

Jones  V.  Millcreek  Corporation,  4  Pick.  324 

Jones  V.  Parishes,  etc.  3  Swanst 58 

Jones  V.  Pilcher,  6  Munf 254 

Jonep  V.  Pugh,  12  Sim 1*3 

Jones  V.  Smith,  14  111 306,  307,  313 

Jones  V.  Strafford,  3  P.  Wms 100,  276 

Jones  V.  Yates,  9  B.  &  C 339 

Jones  V.  Zollicoffer,  1  Car.  L.  R 250 

"Jonit  V.  Gaither,  6  Monr 197 

K 

Kane  v.  Kane,  3  Edw.  Ch 493 

Keating  v.  Keating,  48  111 523 

Keelcr  v.  Eastman,  11  Vt 564 

Kelley  V.  Payne,  18  Ala 57 

Kellom  V.  Easley,  2  Abbot,  C.  C.  R....  259 

Kelsey  V.  Hobby,  16  Pet 306 

Kelso  V.  Blackburn,  3  Leigh 397 

Kemp  V.  Humphreys,  13  111  320 

Kempsey  v.  Maginnis,  2  Mich.  N.  P 549 

Kendall  V.  Almy,  2  Sumner 319 

Kennedy  v.  Georgia  State  Bank,  8  How. 

U.  S 210,  249 

Kennedy  V.  Kennedy,  2  Ala 50 

Ki'nnedy  v.  Kennedy,  3  Dana 339,  .340 

Ki!unedy  v.  Northup,  15  111  . . .   103,  636,  536 
Kernegay  v.  Carroway,  2  Dev.  Ch OT 


TABLE   OF  CASES   CITED. 


745 


Kerr  v.  Watt«,  6  Wheat 64 

Keeter  t.  Stark,  19  111 428,  437,  444 

Keys  V.  Test,  33  111 324 

Kidd  V.  Manley,  6  Cush 46 

Kidder  v.  Aholtz,  30.  Ill 187,  577,  606 

Kilgour  V.  Crawford,  51  111. ...   127,  151,  427 

Kimball  v.  Cook,  1  Gilm 181,  575 

Kimball  v.  Ward,  Walk.  Ch 141 

Kimpton  v.  Eve,  2  Ves.  &  B 566 

Kinnoul  v.  Money,  3  Swaust 352 

King  V.  Clark,  3  Paige,  Cli.  R 277,  278 

King  V.  French,  5  Cliicago  Legal  News.  536 

Kingv.  namilton,4  Pet 317 

King  V.  Henry,  9  Sim 273 

King  V.  Higgins,  3  Oregon 536 

King  v.  Morf  ord,  Saxton '318 

King  V.  Ray,  11  Paige,  Ch.  R 134 

King  V.  Trice,  3  Ired.  Ch 48 

Kinney  v.  Yardley,  Dick 86 

Kinney  v.  Harvey,  2  Leigh 401 

Kinney  v.  Hudnut,  2  Scam 584 

Klnnler  v.  Kinnier,  53  Barb.  N.  Y 490 

Kinzey  v.  Thomas,  28  111 581,  591 

Kirby  v.  Ingersoll,  Harring.  Ch 342 

Kirby  v.  Kirby,  1  Paige,  Ch 532 

Kirby  v.  Taylor,  2  Johns.  Ch.  R 161 

Kirkhamv.  Justice,  17  111 63 

Kirkley  v.  Burton,  5  Mad 60 

Kirksey  V.  Fike,  27  Ala 324 

Kisor  V.  Staneifer,  Wright 46,    55 

Kittridge  v.  Claremont  Bank,  3  Story, 

116 124 

Kivard  v.  Gardner,  39  HI 76 

Klein  v.  Horine,  47  HI 47 

Knapp  V.  Marshall,  26  HI.  65 196,  197 

Knight  V.  Knight,  31  Iowa 502 

Knight  V.  Knight,  3  P.  Wms 325 

Knight  V.  Knight,  4  Mad 294,  295 

Knight  V.  Moseley,  Ambl 100 

Knowles  v.  Haughton,  11  Ves 340,  341 

Knox  T.  Smith,  4  How.  U.  S.  44 149 

Keen  V.  White,  Meigs 320 

Krebell  v.  White,  2  Yonnge  &  C 341 

Kuckenbcirer  v.  Beckert,  41  111 57 

Kuritz  V.  Hibner,  55  HI 438,  444,  445 

Kuyo  V.  Moore,  1  Sim.  &  Stu. .   .   49 

KuyperB  v.  Dutch  Ref.  Ch.  6  Paige, 

Ch 100,  105 


La  Framboise  v.  Grow,  56  111 466 

La  Grange  R.  R.  Co.  v.  Raincy,  7  Cold. 

Tenn 65 

Laight  V.  Morgan,  1  Johns.  Cas 268 

Lake  v.  Austwick,  4  Lond.  Jurist 238 

Lamb  v.  Starr,  1  Deady 105 

Lamar  v.  Jones,  3  Har.  &  McHen 353 

Lane  v.  Erskiue,  13  111 373 

Lane  v.  Stebbins,  9  Paige 268 


Langahcr  v.  Pontiac  &  N.  W.  R.  R.  Co., 

6  Chicago  Legal  News 675 

Langdon  v.  Goddard,  2  Story,  43,  47. . .   160 
Langdon  v.  Pickering,  19  Maine,  52,  95,  160 

Langdon  v.  Roane,  6  Ala 195 

Laugford  v.  Pitt,  2  P.  Wms ...    334 

Langston  v.  Baylston,  2  Ves.  Jr. . .  282,  284 

Lanmon  v.  Clark,  4  McLean 398 

Lannon  v.  Jordon,  56  111 537,  544 

Larrison  v.  Larrison,  5  C.  E.  Greene, 

N.J 492 

Larson  v.  Moore,  1  Texas 250 

Larue  v.  Lame,  2  Little 197 

Laswell  v.  Bobbins 39,  183 

Lathan  v.  Wiswall,  2  Ircd 167 

Latouche  v.  Dunsaney,  1  Sch.  &  Lef. ..  313 

Law  V.  Ford,  2  Paige,  Ch 341 

Lawrencev.  Bolton,  3 Paige,  Ch. 210, 211,  213 

Lawrence  v.  Lane,  4  Gilm 390 

Lawrence  v.  Lawrence,  3  Paige,  Ch.  526,  532 

Lawrence  v.  Richmond,  1  Jac.  &  W 201 

Lawson  v.  Grubbs,  44  Geo 397 

Leacraf t  v.  Demprey,  4  Paige,  Ch 130 

Leadbeater  v.  Roth,  25  111 96 

Lear  v.  Choteau,  23  111 102,  318 

Leavycraf  t  v.  Dempsey,  15  Wend 161 

Le  Barron  v.  Le  Barron,  35  Vt 488 

Leddle  V.  Starr,  20  N.  J.  Eq 281 

Lee  V.  Lee,  Hare,  R 218 

Lee  V.  Kirby,  104  Mass 318 

L'Estrange  v.  Maloney,  1  Hogan 159 

Lefavour  v.  Justice,  5  Blackf 108 

Leftwich  v.  Orne,  1  Freem.  Ch 161 

Legal  V.  Miller,  2  Ves 58 

Leggett  V.  Cooke,  10  Ves 227 

Leggett  V.  Dubois,  2  Paige,  Ch.  R 228 

Leggett  V.  Postley,  2  Paige,  Ch 133 

Legoux  V.  Wante,  3  Har.  &  J 133 

Le  Grand  v.  Whitehead,  3  Rnss 333 

Leigh  V.  Crump,  Ired.  Ch 318 

Lemon  v.  Stevenson,  36  HI 47 

Lennon  v.  Porter,  2  Gray 357 

Lentilhon  v.  Moffat,  1  Edw.  Ch 400 

Leonard  v.  Jamison,  2  Edw.  Ch 388 

Leonard  V.  Morris,  9  Paige,  Ch 376 

Leonard  V.  Villars,  23  HI 374 

Llewellen  V.  Mackworth,  2  Atk 263 

Le  Roy  v.  Veeder,  1  Johns.  Ch 45 

Lesseuer  v.  Lesseuer,  31  Barb 491,  510 

Lester  v.  Stevens,  29  HI 107,  115,  127 

Leverton  v.  Waters,  7  Cold.  Tenn 427 

Levil  V.  Darcey,  1  Ch.  Cas.  3  Mur 256 

Lewis  v.  Baird,  3  McLean 114,  135 

Lewis  V.  Bridgman,  2  Sim 234 

Lewis  V.  Lewis,  Minor 186 

Lewis  V.  Lewis,  9  Mo 47 

Lewis  V.  Wood,  4  How.  Miss 86 

Liggon  V.  Smith,  4  Hen.  &  Munf 152 

Lill  V.  Neafie,  31  111 569 

Lindley  v.  Cravens,  2  Blackf 167 


746 


TABLE   OF   CASES   CITED. 


Lindsay  v.  Lindsay,  50  111 550 

Lindsley  v.  James,  3  Cold.  Tenn 268 

Lingan  v.  Henderson,  1  Bland.. .  42,  46,  57 

Litton's  Case,  Cary 234 

Livingston  v.  Freeland,  3  Barb.  Ch. . .  205 
Livingston  v.  Hubbs,  3  Johns.  Ch.  R..  253 

254,  256 

Livingston  v.  Reynolds,  2  Hill,  Ch 565 

Livingston  V.  Reynolds,  26  Wend 564 

Livingston  v.  Story,  9  Pet 99,  101 

Livingston  v.  Story,  11  Pet 115 

Lloyd  V.  Malone,  23  111 144 

Lock  V.  Fulford,  52  111 388.  390 

Lockridge  v.  Lockridge,  2  B.  Monr 633 

Lockwood  V.  Mills,  39  111 177 

Logan  V.  Logan,  2  B.  Monr 517 

Logan  V.  McChord,  1  A.  K.  Marsh 319 

Logan  V.  McChord,  2  A.  K.  Marsh 320 

Lomaxv.  Dore,45Ill 682,  591 

Looker  v.  Roll,  3  Ve« 61 

Loomia  v.  McKenrie,  31  Iowa 338 

Loomis  V.  Riley,  24  111 427,  428 

London  v.  Warfield,  5  J.  J.  Marsh 564 

Longfellow  v.   Longfellow,  1    Clarke, 

N.  Y 518 

Longworth  t.  Taylor,  1  McLean 318 

Lord  Cartaret  v.  Paschal,  3  P.  Wms. ..  222 
Lord  Dersley  v.  Fitz  Hardinge  Berkley, 

6  Ves 295 

Lord  Gray  de  Wilton  v.  Saxton,  6  Ves.  566 

Lord  Herbet  v.  Pusey,  1  Dick 159 

Lord  Newburgh  v.  Wren,  1  Vern 315 

Lord  North  v.  Lady  Cray,  Dick 299 

Lorillard  v.  Coeter,  5  Paige,  Ch 65 

Loring  v.  Cook,  3  Pick 359 

Loscomb  V.  Russell,  4  Sim 341 

Louvalle  v.  Menard,  1  Gilm 429,  445 

Loud  V.  Sargeant,  1  Edw.  Ch 114 

Love  V.  Blewett,  1  Dev.  &  Bat.  Ch 253 

Lovev  Braxton,  Wythe 369 

Lowe  V.  Richardson,  3  Mad 282 

Lowe  V.  Tragnor,  6  Coldw.  Tenn.  R... .  189 
Lownsdalc  v.  City  of  Portland,  1  Oregon  161 

Lo wndise  v.  Comfort,  18  Ves 282 

Lowry  v.  Harris,  12  Minn 102 

Lowther  v.  Carlton,  2  Atk 357 

Loyd  V.  Malone,  23  111 475 

Lozier  v.  Van  Saun,  2  Green,  Ch 280 

Lnbiere  v.  Genon,  2  Ves 193 

Lnbin  v.  Lightbody,  8  Price 335 

Luckett  V.  White,  10  Gill  &  J 48,  102 

Lucus  V.  Atwood,  2  Stewart 403 

Lnpton  v.  Hercolt,  1  Sim.  &  Stu 86 

Lynch  v.  Johnson,  2  Litt 50 

Lynch  v.  Lynch,  33  Md 503 

Lynch  v.  Sumrall,  1  A.  K.  Marsh 269 

Lynch  v.  Willard,  6  Johus.  Ch 103 

Lyou  v.  Lyon,  62  Barb.  N.  Y 492 

Lyon  v.  Robbing,  46  111 92,  259,  403 

Lyon  v.Talmadge.  1  Johns.  Ch..l65,  167,  171 


M 

Mackey  V.  BelJ,  2  Mnnf 19ft 

Magniac  v.  Thompson,  2  Wall.  Jr.  0.  C. 

R 47 

Maher  v.  Bull,  39  111 143,  186 

Mahar  v.  O'Hara,  4  Gilm 137,  140 

Mahone  V.  Mahone,  19  Cal 499 

Manchester  v.  Matthewson,  2  S.  1 247 

Manchester  v.  McKee,  4  Gilm 88 

Manigault  v.  Deas,  1  Bailey,  Ch.  R 251 

Manning  v.  Rixf  ord,  44  111 121 

Mansfield  v.  Hoagland,  46  111 64 

Mansfield  y.  Mansfield,  Wright,  Ch 493 

Many  v.  Beckman  Iron  Co.  9  Paige,  Ch. 


Maple  V.  Scott,  41  111 56,  142,  171, 

Marble  V.  Bonhotel,  35  Dl....  164,  165, 

Marble  Co.  v.  Ripley,  10  Wall 

March  v.  Davidson,  9  Paige,  Ch.  R.  268, 

Margraviue  of  Auspach  v.  Noel,  1  Mad. 


102 
172 
166 
318 
270 
275 


Marker  V.  Marker,  9  Hare 564 

Martin  v.  Marlin,  2  Johns.  Ch 166 

Marsh  v.  Marsh,  2  Beasley,  N.  J    609 

Marsh  v.  Marsh,  1  Green,  N.  J 104 

Marshall  v.  Vickbburg,  15  Wall 100 

Marston  v.  Humphreys,  24  Maine 65 

Marten  V.  Van  Schaick,  4  Paige,  Ch.  341,  342 

Martin  v.  Dryden,  1  Gilm 62 

Martin  v.  Eversal,  36  111. ...  56,  142,  580,  583 

Martin  v.  Hargarden,  46  HI 76,  89,  187 

Martin  v.  Maberry,  1  Dev.  Ch 280 

Martin  v.  McBryde,  3  Ired.  Ch 48 

Martin  V.  Martin,  47  N.  H 506 

Martine  v.  Nelson,  51  111 676 

Martinius  v.  Helmuth,  2  Ves.  &  Bea.  283,  290 

Marvin  v.  Collins,  48  111  464 

Marvin  v.  Trumbull,  Wright 259 

Maryland  V.  Northern,  etc.  18  Mad 565 

Mason  v.  Bair,  33  111 165 

Mason  v.  Gardiner,  4  Bro.  C.  C 308,  314 

Mason  v.  McGirr,  28  111 138,  171 

Mason  v.  Hamilton,  5  Sim 291 

Mason  v.  Mason,  1  Edw.  Ch  526 

Mason  V.  Wallace,  3  McLean 320 

Massie  v.  Graham,  3  McLean 249,  254 

Massie  v.  Grant,  3  McLean 254 

Master  v.  Kirton,  3  Ves 340 

Master  v.  Master,  15  N.  H 509,  610 

Masterson  v.  Craig,  5  Litt 138,  141 

Masterson  V.  Wiswold,  18111..  89,  144,  145 

Matchin  v.  Matchin,  6  Barr 49? 

Matter  of^Hutchkins,  7  Phil.  Pa.  R....  650 

Mattocks  V.  Tremain,  3  Johns.  Ch 560 

Mattox  V.  Mattox,  2  Ham 491,  610 

Mauck  V.  Mauck,  54  111 19» 

Maude  v.  Eodes,  4  Dana SS9 

Maury  v.  Lewis,  10  Yerg 4ft 


TABLE   OF   CASES   CITED. 


747 


Maury  V.  Mason,  8  Porter 195 

Maxwell  V.  Fiuiiie,  6  Coklw.  Tenn.  ...  570 
Maxwell  v.  Kennedy,  8  How.  U.  S.     99,  102 

May  V.  Armstrong,  3  J.  J.  Marsh 307 

May  V.  Parker,  12  Piek 54 

Mayer  v.  Mayer,  (i  C.  E.  Greene,  N.  J..  492 

Maynard  v.  Moscley,  3  Swanst 200 

Mayor  of  London  v.  Levy,  8  Ves 101 

Mazareddo  v.  Maitland,  3  Mad.  K 270 

McArtee  v.  Engart,  13  111 165 

McCagg  V.  Ileacock,  42  111 138,  306 

McCall  V.  Yard,  1  Stockt.  N.  J 373 

McCalniont  v.  Lawrence,  1  Blatchf.  C. 

C.  R 401,  403 

McCann  v.  Dorsheimer,  1  Clarke 399 

McCarkle  v.  Brown,  9  S.  &  M 321 

McCarter  v.  Carter,  49  111 577 

McClay  V.  Norris,  4  Gilm.  89,  144,  145,  183 

McClellan  v.  Darrah,  50  111 318 

McCloBkcy  V.  McCormick,  44  111 ... .  98,  104 

McClurg  V.  Phillips,  40  Mo .389 

McClurpen  v.  Deirich,  33  III 318 

McComas  v.  Easley,  21  Gratt.  Va 317 

McComas  v.  Minor,  Walker 167 

McConnel  v.  Gibson,  12  111 47 

McConnel  v.  Dickson,  43  111 397 

McConnel  v.  Smith,  23  111 ...  226 

McConnell  v.  Ayres,  3  Scam 612 

McConnell  v.  Hodson,  2  Gilm 138 

McConnell  V.  Holobush,  11  lU...  51,  60,  95 

160 

McConnell  v.  McConnell,  11  Vt 62 

McConnell  V.  Smith,  27  111 ...  189 

McConniccs  v.  Moseley,  4  Call 194 

McCormick  v.  Wheeler,  36  111 200 

McCosker  v.  Brady,  1  Barb.  Ch 569 

McCrackiu  V.  Finley,  1  Bibb 253   254 

McCullom  V.  Tnrpie,  32  Ind 390 

McDaniel  v.  Canell,  19  111 145 

McDaniel  v.  James,  23  111 249.  250 

McDerraot  v.  Blois,  Charl.  R.  M 397 

McDermaid  v.  Russell,  41  111 145 

McDonald  v.  McDonald,  10  Vt....   134,  135 

McDonald  v.  Starkey,  42  HI 570 

McDonough  v.  Shewbridge,  2  Ball  &  B.  308 

McDowell  V.  Cochran,  11  111 108,  397 

McElwaine  v.  Willis,  9  Wend..  44,  104,  397 
McElwee  v.  Sutton,  1  Hill,  Ch.  R..  277,  278 

McFadden  v.  Worthington,  45  111 535 

McGalliard  v.  Aiken,  2  Ired.  Ch 320 

McGarrah  v.  Prather,  1  Blackf . . . .  281,  286 
McGown  V.  Yorks,  6  Johns.  Ch  .. .  206,  373 
McGrew  Tombeckbee  Bank,  5  Porter. .     45 

McHcnry  V.  Hazard,  45  N.  Y 297 

McIntirev.Trustees,  etc.  6  Paige,  Ch. 44,  161 

McKaig  V.  Piatt,  34  Md 123 

McKeen  v.  Field,  4  Edw.  Ch.  R 158 

McKim  V.  Thompson,  1  Bland 143 

McLagan  v.  Brown,  11  111 576,  591 

McLain  v.  Van  Winkle,  46  Dl.     .    200,  449 


McLaughlin  v.  Van  Keuren,  21  N.  J.  Eq.  65 
McLean  V.  Lafayette, etc., 3 McLean. 49,  388 

McMillin  v.  McMillin,  7  Monr 320 

McMuUen  v.  Furness,  1  Smith 375 

McMurtrie  v.  Bennett,  Hirring.  Ch 318 

McNab  V.  Heald,  41  111 57 

McNamara,  v.  Williams,  6  Ves 3.35 

McNeil  V.  Mageo,  5  Mason 317,  324 

McRae  v.  McKinzie,  2  Dev.  &  Bat 340 

Mead  v.  Arras,  3  Vt 250 

Meaher  v.  Cox,  37  Ala 339 

Means  v.  Means,  42  111 195 

Mebane  T.  Mebane,  1  Ired.  Ch 46 

Mechanic's  Bank  v.  Levy,  1  Edw.  Ch..  137 
Mechanic's  Bank  v.  Levy,  3  Paige,  Ch.    46 

55 

Mechanic's  Bank  v.  Lynn,  1  Pet 135 

Mechanic's  Bank  v.  Seaton,  1  Pet. .  62,  322 

Meeker  v.  Marsh,  Saxon 114 

Meeker  v.  Meeker,  16  Conn 318 

Melde  v.  Lapeyrollerie,  16  La.  An 492 

Melick  v.  Melick,  2  Green,  N.  J 102 

Mellish  v.  Williams,  1  Vern 252 

Mercier  v.  Lewis,  39  Cal 44,  305 

Merrywether  v.  Mellich,  13  Ves.lH,  242,  247 

Messervey  v.  Beckwith,  41  111 91 

Metcalfe  v.  Hervey,  1  Ves.  100,  282,  283,  286 

Metcalfe  v.  Metcalfe,  1  Keen 229,  233 

Methodist  Church  v.  Jaques,  3  Johns. 

Ch.R ...  135,  186 

Metropolitan  Bank  v.  Godfrey,  23  111..   165 

Meux  V.  Bell,  6  Sims 288 

M.  &  H.  R.R.Co.v.Clate, 4Paige,Ch.  280,  281 

Meyer  v.  Pfeiffer,  50  111 -45 

Miers  v.  Zauesville  &  Maysville  Tnrn- 

pikeCo.,11  Ohio 405 

Miles  V.  Bacon,  4  J.  J.  Marsh 313 

Miles  V.  Thomas,  9  Sim 341 

Milk  V.  Moore,  39  111 188,  189,  190,  512 

Millard  v.  Bramsdell,  Harring.  Ch 321 

Miller  v.  Bear,  3  Paige,  Ch.  R 320 

Miller  v.  Colton,  5  Geo 47 

Miller  V.  Davidson,  3  Gilm 88,  397 

Miller  v.  Furse,  1  Bailey,  Ch 43,  44,    99 

Miller  v.  McCan,  7  Paige,  Ch 65 

Miller  v.  Miller,  6  Johns.  Ch 532 

Miller  v.  Miller,  Saxton,  N.J 530 

Miller  V.  Mills,  29  111 75,    77 

Miller  v.  Thomas,  14  111  351 

Milligan  v.  Milledge,  3  Cranch 117 

Mills  v.  Brown,  2  Scam 99 

Mills  v.  Heeney,  35  111 89 

Mills  v.  Hoag,  7  Paige,  Ch 197 

Mills  V.  Keeney,  35  111 591 

Mills  V.  Met  calf,  1  A.  K.  Marsh 326 

Millspaugh  v.  McBride,  7  Paige,  Ch.  R.  251 

Milner  v.  Hanwood,  17  Ves 164 

Milnor  v.  Willard,  34  111 318.  320 

Milwaukee  &  Minn.  R.  R.  Co.  v.  Soutter, 

13  Wallace 404 


748 


TABLE   OF   CASES   CITED. 


Mines  v.  Moore,  4  111 372 

Mine  v.  Mins,  3  J.  J.  Marsh 65 

Misi>cr  V.  Billiard,  43  111 614 

Mitchell  V.  Biirch,  2  Paige,  Ch 555 

Mitchell  V.  Hayne,  2  Sim.  &  Stu 283 

Mitchell  V.  Lenox,  2  Paige,  Ch 102 

Mix  V.  Beach,  4U  111 204,  211,  321,  326 

Mix  V.  Hotchkiss,  14  Conn 49 

Modesett  v.  Johnson,  2  Blackf 318 

Mohawk  &  Hudson  R.  R.  Co.  v.  Clute,  4 

Paige,  Ch 283,  288 

Mole  V.  Smith,  Jac 218,  333 

Monk  V.  Monk,  7  Rob.  N.  Y 510 

Montgomery  v.  Brown,  2  Gilm 76,  373 

Montgomery  V.  Norris,  1  How.  Miss...  321 
Monroy  v.  Monroy,  1  Edw.  Ch  ...  519,  529 

Moore  y.  Armstrong,  9  Porter 102,  103 

Moore  v.  Bracken,  27  111 253 

Moore  v.  Cable,  1  Johns.  Ch 353 

Moore  v.  Cheeseman,  23  Mich 60 

Moore  v.  Dail,  3  Stewart 45 

Moore  v  Green,  19  How.  U.  S 47 

Moore  v.  Hoisington,  31  111 99 

Moore  v.  Hunter,  1  Gilm 140,  141 

Moore  v.  Moore,  1  Green,  N.  J 492 

Moore  v.  School  Trustees,  19  111 89,  187 

Moore  v.  Titnian,  33  111 88,  90,  183 

Moore  v.  Skidmore,  6  Litt 319 

Morel  V.  Houston,  Charl.  R.  M 45 

Moretou  v.  Harrison,  1  Bland 118 

Morgan  v.  Crabb,  3  Porter 195 

Morgan  v.  Harris,  2  Bro.  C.  C 273 

Morgan's  Heirs  v.  Morgan,  2  Wheat...  321 

Morgan  v.  Morgan,  10  Geo 205 

Morgan  v.  Morgan,  2  Wheat 325 

Morgan  v.  Sherwood,  53  111 376 

Morgan  v.  Smith,  11  111 44,  47,  165,  306 

Morganstein  v.  Klees,  30  111 371 

Morrell  v.  Morrell,  1  Barb 493 

Morrell  v.  Morrell,  2  Barb.  S.  C.  R 532 

Morrice  v.  Bank  of  Eng.  Talb.  Gas 86 

Morris  V.  Hogle,  37  111 535,  538 

Morris  v.  Nixon,  1  How.  U.  S 351 

Morrison  v.  Buckner,  Hemp 376 

Morrison  v.  Stewart,  24  111 141 

Moree  v.  Hovey,  9  Paige,  Ch 63 

Morse  v.  Hovey,  1  Sandf.  Ch.  R 141 

Mortlock  V.  Buller,  10  Vea 334 

Morton  v.  Noble,  .57  111 462 

Moser  v.  Matt,  24  HI 579 

Moshier  v.  Knox  College,  32  111 166,  177 

Mott  V.  Hall,  41  Geo 159 

Moulton  V.  Monlton,  1  Shep.  Maine  ...  492 

Moyler  v.  Moyler,  11  Ala 502 

M.  &  R.  R.  Co.  V.  Woodruff,  26  Ark. ...    46 
Mt.  Carbon  Coal  Co.  v.  Blanchard,  54  111.    51 

65 

Muckleston  v.  Brown,  6  Ves 55 

Mugge  V.  Ewing,  54  111 397,  400 

MaUord  v.  Stalzenback,  46  111 92 


Mulligan  v.  Baring,  3  Daley,  N.  T 6.3« 

Munday  v.  Taylor,  7  Bush,  Ky 550 

Murdock's  Case,  2  Bland 14.^ 

Murphy  V.  Clark,  1  S.  &  M 47,    50 

Murphy  v.  Lockwood,  21  HI 320 

Murphy  v.  Stultz,  Saxton 192 

Murray  v.  E.  I.  Co.,  6  Barn.  &  Aid 234 

Myatt  V.  Walker,  44  111 553 

Myers  V.  Fenu,  5  Wallace 401 

Myers  v.  Kinzie,  26  HI 141 

Myers  v.  Myers,  41  Barb.  N.  Y 492 

Myers  v.  Wright,  33  111 374 


N 


Nabob  of  Arcott  v.  East  India  Co.  3 

Bro.  C.  C 118 

Nanny  V.  Totty,  11  Price 233,  234,  2.35 

Nash  v.  Smith, 6  Conn....  65,  104,  280,  286 
National  Baak  v.  Sprague,  21  N.  J.  Eq.  306 

Neal  V.  Hagthorp,  3  Bland 134 

Neale  v.  Neale,  9  Wallace 165,  325 

Nelson  v.  First  National  Bank  of  Chi- 
cago, 48  HI 107 

Nelson  v.  Pinegar,  30  HI 171,  565 

Nelson  v.  Rockwell,  14  HI 536 

Nesmith  v.  Calvert,  1  Wood  &  Minn. ..    43 

Nevil  V.  Johnston,  2  Vern 194 

New  Barbadoes  Toll  Bridge  v.  Vree- 

land,  3  Green,  Ch 320 

Newberry  v.  Wren,  1  Vern  305,  307 

Newdigate  v.  Lee,  9  Dana 403 

Newell  V.  Bureau  Co.  37  111 47,    99 

Newell  V.  Newell,  9  Paige,  Ch 483 

New  London  Bank  v.  Lee,  11  Conn 62 

Newman  v.  Holder,  Finch 103 

Newman  v.  W'illetts,  48  111 466 

Newman  v.Willets,  52  111..  397,398,400,  405 

Nichol  V.  Miller,  37  HI 458,  462 

Nichol  V.  Ogden,  29  111 458,  462,  569 

Nichol  V.  Roosefelt,  3  Johns 226 

Nichols  V.  Nichols,  31  Vt 492 

Nichols  V.  Thornton,  16  111 89,  187 

Nixon  vs.  Richardson,  4  Dessau 556 

Nobkissen  v.  Hastings,  2  Ves.  Jr 118 

Nockells  V.  Crosby,  3  B.  &  C 339 

Nogees  v.  Nogees,  7  Texas 509 

Norcott  V.  Norcott,  7  Viu 200 

Norrich  v.  Marshall,  5  Mad 357 

Norris  v.  Knox,  1  Piltsb.  Pa.  R 318 

North  V.  Earl  of  Strafford,  3  P.  Wms...  105 

North  V.  Gray,  1  Dick 296 

North  V.  North,  5  Miss 509 

North  Am.  Coal  Co.  v.  Dyett,  2  Edw. 

Ch 806 

North  Am.  Fire  Ins.  Co.  v.  Graham,  5 

Sandf.  Ch 397 

North  Presbyterian  Church  of  Chicago 

v.Jevne,32ni 683 


TABLE   OF   CASES   CITED. 


749 


North  R.  Bank  v.  Rogers,  8  Paige,  Ch. 

R 160,  167 

Northrop  v.  Hatch,  6  Conn 2()8 

Northwestern  Bank  v.  Nelson,  1  Gratt. 

Va 106 

Norton  v.  Hixon,  25  111 90,  103,  569 

Norton  v.  Warren,  3  Edw 134,  373 

Norton  v.  Woods,  5  Paige,  Ch.  R 161 

Norway  v.  Rowe,  16  Ves 340,  565 

Novoseilski  v.  Wakefield,  17  Ves 368 

Noyes  V.  Sawyer,  3  Vt 167 

Nugent  V.  Locke,  4  Cal ...  338 

N.  Y.  Dry  Dock  Co.  v.  Am.  Life  Ins.  Co. 

SSandf.Ch 306 

0 

O'Brien  v.  Connor,  2  Ball  &  Beat. .  252,  262 

O'Connell  V.  Rea,51Ill 37 

O'Conner  v.  Wilson,  57  111 538 

Odom  V.  Odom,  36  Geo 502,  509 

Ogden  V.  Larrabee.  57  111 -103 

Ogle  Ship,  1  A.  K.  Marsh 359 

Ohio  V.  Baum,  6  Ham 318 

Ohio  V.  Ellis,  10  Ohio 51 

Ohling  V.  Luitjens,  82  111 46,  89,  374 

Oldaker  v.  Lavender,  6  Sim 339 

Oldham  v.  Eboral,  Coop.  Select  Cas...  242 

Oliver  v.Crosswell,  42  111 321 

Oliver  v.  Palmer,  11  Gill  &  J. . . .  42,  47,    62 
Oliver  V.Piatt,  3  How.  U.S.  48,  49,  102,  375 

Onions  v.  Tyner,  1  P.  Wms 200 

Onslow  v. ,  16  Ves 563 

Orcott  V.  Orms,  3  Paige,  Ch 130 

Ordv.  Huddlcston,2Dick 116,  127 

Ord  V.  Noel,  6  Mad 253,  254 

Organ  v.  Gardner,  1  Cas.  in  Ch 222 

Orton  Y.  Smith,  18  N.  H 535 

Osborne  v.  Bremar,  1  Dessau 320 

Osborne  v.  Horine,  19  111 466 

Osborne  v.  Usher,  6  Bro.  P.  C 255 

Osbourn  v.  Fallows,  1  Russ.  &  Mylne..  356 

Osgood  V.  Osgood,  2  Paige,  Ch 518 

Ottowa  N.  P.  R.  Co.  v.  Murray,  15  HI..  371 

Ottowa  V.  Walker,  21111 88 

Overman  v.  Parker,  Hemp 535 

Owen  V.  Robbins,  19  HI 458 

Owens  V.  Ramstead,  22  111 186 

P 

Packington  v.  Packington,  8  Atk 564 

Page  V.  Davidson,  22  HI 566 

Palk  V.  Clinton,  12  Ves 356,  557 

Palmer  v.  Earl  of  Carlisle,  1  Sim.  &  Stu.  355 

Palmer  v.  Van  Doren,  Edw.  Cli 556 

Pandleton  v.  Fay,  3  Paige,  Ch 226 

Pankey  v.  Ranm,  51  HI 186,  189,  553 

Panton  V.  Teft,  22  111 56,  142 

Partridge  v.  Haycraft,  11  Ves. . .  53,  54,  168 


Parbridgc  v.  Jackson,  2  Edw.  Ch 60 

Pardee  v.  De  Gala,  7  Paige,  Ch 504 

Pardee  v.  Van  Anken,  3  Barb.  R 352 

Parish  v.  Lewis,  1  Freeni.  Ch 397 

Park  v.  Ballentine,  6  Blackf 62,  167 

Parker  V.  Aloch,  1  Young  &  Jer 108 

Parker  V.  Carter,  4  Munf 43,45,    46 

Parker  v.  FoUensbee,  45  111 557 

Parker  v.  Grant,  1  .lohns.  Ch 90 

Parker  V.  Leigh,  6  Mad 305 

Parker  v.  Parker,  Gl  111 508,  523 

Parker  v.  Parker,  4  Munf 55 

Parkhiirst  v.  Cummings,  56  Maine 359 

Parkins  v.  Hays,  Cooke,  Tenn 164-165 

Parkinson  v.  Truesdale,  3  Scam 140 

Parkman  v.  Welch,  19  Pick 388 

Parmelee  v.  Egan,  7  Paige,  Ch 401 

Parmelee  v.  Lawrence,  44  111 351 

Parrington  v.  Pierce,  38  Maine 351 

Partridge  v.  Usborne,  5  Rus 256 

Pastoiet  v.  Pastoiet,  6  Mass 510 

Paterson  v.  Slaughter,  Amt 152 

Paton  V.  Rogers,  6  Mad 334 

Patriotic  Bank  v.  Bank  of  Washington, 

5Cranch,  C.  C.  R 158 

Pa ttison  V.  Powers,  4  Paige,  Ch 375 

Pavie  V.  A'Court,  1  Dick 117 

Paxton  V.  Harrier,  11  Penn 388 

Payne  v.  Avery,  21  Mich 129,  390 

Payne  v.  Cowan,  1  S.  &  M 307 

Payne  v.  Frazier,  4  Scam 171 

Payne  v.  Hook,  7  Wallace 50 

Pay  ton  v.  McDowell,  3  Dana 522 

Peabody  v.  Peabody,  104  Mass 502 

Peacock  v.  Terry,  9  Geo 43 

Peak  V.  Pricer,  21  111 144 

Pearson  v.  Ward,  1  Cox 296 

Peck  V.  Ashley,  12  Met 269 

Peck  V.  Shasted,  21  111 145 

Peckford  v.  Peckford,  1  Paige,  Ch 532 

Peckham  v.  Barker,  8  R.  1 325 

Pedrick  v.  White,  1  Met 204,  210 

Peiters  v.  Thompson,  Coop 138 

Pell  V.  Elliot,  Hopk.  Ch 227 

Pendleton  v.  Fay,  3  Paige,  Ch.  233,  246,  247 

254 

Penfold  V.  Nunn,5Sim 99 

Pennebaker  v.  Watham,  2  A.  K.  Marsh.    45 
Pennington  v.  Beachy,  2  Sim.  &  Stu. . .  I-IS 

Peoples  V.  Peoples,  19  El 98 

People,  etc.  v.  Gilmer.  5  Gilm 614 

Ferine  v.  Dunn,  4  Johns.  Ch 368 

Perry  v.  Perry,  2  Paige,  Ch 487,  526 

Perry  v.  Phelips,  17  Ves 254 

Personau  V.  Pulliam,  47  111 143 

Petrie  V.  The  People,  40  111 517 

Pettis  V.  Shepherd,  5  Paige,  Ch 536 

Pettit  V.  Candler,  3  Wend 135 

Peyton  v.  Jeffries,  50  111 477 

Phelan  V.  Phelan,  12  Florida. 4»7 


750 


TABLE   OF   CASES   CITED. 


Phelps  T.  Foster,  18  111 612 

Phelps  V.  Ganon,  3  Edw.  Ch 114 

Phelps  V.  Loyhed,  1  Dillon 390 

Phelps  V.  Sproiile,  4  Sim  219,  230,  243 

Phelps  V.  White,  18  111 56,  142 

Phelps  V.  Young,  Breese  (Becher's  Ed.)  181 

Phillips  V.  Berger,  2  Barb.  R 322 

Phillips  V.  Carew,  1  P.  Wms 296 

Phillips  V.  Darbe,  1  Dick 2;39 

Phillips  V.  Overton,  4  Hey 135 

PhUlips  V.  Phillips,  4  Blackf 509 

Phillips  V.  Prevost,  4  Johns.  Ch 133 

Phillips  V.  Stone,  25  111 591 

Phoenix  v.  Clark,  2  Halst.  Ch 564 

Phy  V.  Clark,  35  111 177 

Piatt  V.  Oliver,  1  McLean 114,  117,  130 

Pidgeon  v.  Trustees,  44  111 89 

Pierce  v.  Pierce,  3  Pick 492 

Pierce  v.  West,  3  Wash.  C.  C.  R 169 

Pierpont  v.  Fowle,  2  Woodbury  &  Mi- 

not's  R 99 

Piersall  V.  Elliott,  6  Pet 95 

Pigg  V.  Corder,  12  Leigh 195,  818,  321 

Piggott  V.  Williams,  6  Mad 305 

Pigott  V.  Bagley,  McClel.  &  Y 341 

Pillow  V.  Aldridge,  4  Hump 289 

Pilsvrorth  v.  Hopton,  6  Ves 565 

P.  &M.  Bank  v.  Dundas,  10  Ala 254 

Pinkard  V.  Pinkard,  14  Texas 497 

Pinson  v.  Williams,  23  Miss 43 

Pitt  V.  Davis,  3  Russ 333 

Pitt  V.  Earl  of  Argloss,  1  Vera....  263,  265 

Plaster  v.  Plaster,  47  111 523 

Plaster  V.  Plaster,  53  III 523 

Piatt  V.  Judson,  3  Blackf 88,  89,  397 

Pleasants  v.  Glasscock,  1  S.  &  M.  Ch. .     57 

Plummer  v.  May,  1  Vern 103 

Plunket  V.  Penson,  2  Atk.  R 275,  325 

Pogson  V.  Owen,  3  Dessau 63 

Pogue  V.  Clark,  25  111 104 

Polk  V.  Clinton,  12  Ves 58 

Polt  V.  Gallini,  1  Sim.  &  Stu 223 

Pope  V.  North,  33  111 374 

Pope  V.  Salsman,35  Mo 340 

Porittv.  Poritt,  16  Mich 499 

Portarliiigton  v.  Soulby,  6  Sim 99,  276 

Porter  v.  Ewing,  24  111 458 

Potier  V.  Barclay,  15  Ala 204 

Potter  V.  Potter,  71  111 548 

Power  V.  McCord,  36  111 580,  583,  6M 

Powys  V.  Blagrave,  27  Eng.  Law  &  Eq. 

R 563 

Prater  v.  Miller,  3  Hawks 318,  321 

Prather  v.  Prathcr,  4  Dessau 557 

Pratt  V.  Brett,  2  Mad 563,  566 

Pratt  V.  Carroll,  8  Cranch 320 

Prentice  v.  Kimball,  19  111 62,  65,  102 

Preschbaker  v.  Feaman,  32  lU 350 

Prescott  V.  Maxwell,  48  111 591 

President,  etc.  v.  S.  HI.  N.  Uni..  54  111.  103 


Preston  v.  Hodgen,  50  111 89,  182,  187 

Prettyman  v.  Wolston,  34  111 175 

Price  v.  Nesbit,  1  Hill,  Ch 196 

Prieto  v.  Duncan.  22  111 77 

Primmer  v.  Patten,  32  111 44,  270 

Prince  v.  Prince,  1  Rich.  S.  C.  Ch 5-32 

Princess  of  Wales  v.  Earl  of  Liverpool, 

1  Swanst 96 

Prnen  v.  Lunn,  5  Russ 237 

Purfoy  V.  Purfoy ,  1  Vern 48 

Purris  V.  Brown,  4  Ired.  Eq 353 

Puryoar  v.  Ruse,  6  Coldw.  Tenn 550 

Putnam  v.  Putnam,  4  Pick 225 

Q 

Quarrier  v.  Carter,  4  Hen.  &  M 198,  249 

Qnestel  v.  Questel,  Wright,  Ch 511 

Quick  V.  Tilley,  2  Green,  Ch 253 

Quigley  v.  Roberts,  44  111 89,  145,  187 

Quincy  v.  Quincy,  10  N.  H 509 

Quinn  v.  Green,  1  Ired.  Ch 281 

Quinn  V.  Patton,  2  Ired.  Ch 281 

Quinn  v.  Roath,  37  Conn 318 


R 


Racine  &  Miss.  R.  R.  Co.  t.  Farmers' 

Loan  &  Trust  Co.  49  HI  375,  388 

Railroad  Co.  v.  Cowles,  32  HI 181 

Ramere  v.  Rawlins,  Finch 103 

Ramkissenseat  v.  Barker,  1  Atk 315 

Kamsey  v.  Liston,  25  111 324 

Randolph  v.  Dickerson,  5  Paige,  Ch.  R.  247 

Randolph  v.  Emerick,  13  111 37,    97 

Randolph  v.  Randolph,  1  Hen.  &  M . . . .  253 

Raper  v.  Saunders,  21  Gratt.  Va 67 

Raymond  v.  Ewing,  26  111 582,  583,  591 

RajTnond  v.  Fisher,  45  Miss 253 

Read  v.  Long,  4  Yerger 323 

Read  V.  Read,  1  Ch.  Ca 557 

Reavis  V.  Reavis,  1  Scam 497 

Reboul's  Heirs  v.  Behrens,  5  La.  An.. .    61 

Rector  v.  Rector,  3  Gilm 175.  318 

Reddick  v.  State  Bank,  27  111 144 

Reed  v.  Johnson,  24  Maine 45 

Reed  V.  Kempf,  16  111 312 

Reed  v.  Reed,  Wright,  Ch 497 

Reed  v.  Tyler,  56  111 536,  539 

Reed  V.  Warner,  5  Paige,  Ch.  R 140 

Reed  v.  Wheaton,  7  Paige,  Ch 404 

Reese  v.  Reese,  23  Ala 509 

Reeves  v.  Adams,  2  Dev.  Ch 64 

Reid  V.  Vanderhcyden,  5  Conn 64 

Reigard  v.  McNeil,  38  111 183,  351 

Renu  V.  Lamon,  33  Texas 548 

Renwick  v.  Wilson,  6  Johns.  Ch 166 

Respassv.  McClanahan,  Hardin...  250,  253 

Khoads  V.  Rhoads,  43  111 144,  549 

Rhode  Island  t.  Massachasetts,  16  Pet    99 


TABLE   OF   CASES   CITED. 


751 


Rlbet  V.  Ribet,  39  Ala 491,  510 

Kice  V.  Barnard,  20  Vt 397 

Rice  V.  Hathaway,  18  111 91 

Richards  V.  Hyde,  21  111 37 

Richards  v.  Richards,  Wright,  Ch 493 

Richards  v.  Salter,  9  Johns.  Ch 280 

Richardson  v.  Baker,  5  Cal 320 

Richardson  v.  Hastings,  7  Beav 341 

Richardson  v.  Prevo,  Breese 94 

Richardson  V  Thompson,  41  111 74,    76 

Ricketts  v.  Ricketts,  4  Gill 511 

Ridgeley  V.  Warfield,  1  Bland 118 

Riggs  V.  Dickinson,  2  Scam 448 

Rigga  V.  Wilton,  13  111 190,  548,  553 

Ringgold  V.  Rinagold,  1  Har.  &  Q 195 

Ripley  v.  Morris,  2  Gilm 37,     96 

Ripple  V.  Gilbourne,  8  How.  U.  S 429 

Ritchie  v.  Aylwin,  15  Ves 114 

Hives  V.  Rives,  3  Yes 61 

Roach  V.  Chapin,  27  111. . . .  88,  106,  578,  591 

Roach  V.  Hulings,  5  Cranch.  C.  C 60 

Routh  V.  Smith,  5  Conn , 373 

Robbins  v.  Kinzie,  45  111 466 

Roberdean  v.  Rous,  1  Atk 105 

Roberts  v.  Albany  &  West  Stockbridge 

R.  R.  Co.  25  Barb 403 

Roberts  v.  Clayton,  3  Anst 106 

Roberts  v.  Fahs,  32  111 37,    96 

Roberts  v.  Fleming,  53  111 353,  428 

Roberis  v.  Marchant,  1  Hare 325 

Roberts  v.  Roberts,  16  Sim 219 

Robertson  v.  Biugley,  1  McC.  Ch..  100,  134 

Robertson  v.  Lubback,  4  Sim 114 

Robertson  v.  Southgate,  5  Hare,  R 218 

Robins  v.  Abrahams,  1  Halst.  Ch 139 

Robinson  v.  Cathcart,  2  Cranch,  C.C  . .  323 

Robinson  v.  Farelly,  10  Ala 358 

Robinson  V.  Robinson,  2  Ves 223 

Robinson  v.  Sampson,  26  Maine 254 

Rpbinson  v.  Smith,  3  Paige,  Ch. . .    63,  102 

Robinson  v.  Woodgate,  3  Edw.  Ch 134 

Rodgers  v.  Rodgers,  1  Paige,  Ch...  165,  168 

Roe  V.  Taylor,  45  111 548 

Rogau  v.  Walker,  1  Wis 358 

Rogers  v.  De  Forrest,  3  Edw.  Ch 168 

Rogers  v.  Patterson,  4  Paige,  Ch 227 

Rogers  V.  Saunders,  16  Maine 319,  323 

Rogers  v.  Vines,  6  Ired.  Ch 533 

Rogers  v.  Ward,  23  111 591 

Rootham  V.  Dawson,  3  Anst 61 

Rose  V.  Gannell,  3  Atk 297,  299 

Eoee  V.  Rose,  11  Paige,  Ch 511,  517 

Rose  V.  Swan,  56  HI  320 

Ross  V.  Cobb,  48  111 426,  427 

Boss  V.  Union  Pacific  R.  R.  Co.  1  Wool. 

322,  323 

Roundtree  v.  McLain,  1  Hemp 322 

Rowe  V.  Tweed,  15  Ves 113,  114 

Rowland  v.  Gorman,  1  J.  J.  Marsh 65 

Rowley  V.  James,  31  111.. 591 


Rowman  v.  Bowles,  19  111 44' 

Rubber  Co.  v.  Goodyear,  9  Wallace 254 

Ruckerv.  Dooley,  49  111 635,  538,  539 

RuflF  V.  Starke,  3  Gratt.  Va 197 

Ruggles  V.  S.  M.  R.  R.  Co.  5  Chicago 

Legal  News 371 

Russell  V.  Clark,  7  Cranch 61,  267,  278 

Russell  V.  Ely,  2  Black 350 

Ru.«<sell  v.  Loscombe,  4  Sim 340,  341 

Russell  v.  Payne,  45  111 188,  189 

Russell  V.  Rogers,  56  111 614 

Russell  V.  Rumsey,  35  111 464 

Russell  V.  Russell,  54  111 56,  142 

Russell  V.  Topping,  5  McLean 850 

Russell  V.  Waite,  Harring.  Ch 90 

Rust  V.  Mansfield,  25  111 142 

Ryan  v.  Jones,  15  III 397 

Ryan  v.  Trustees,  etc.  14  111 49 

Rylands  v.  Latouche,  2  Bligh.  222,  242,  247 


Sackville  v.  Ayleworth,  1  Vern 295 

Sagory  v.  Wissman,  2  Benedict 385 

Sale  V.  Fiske,  54111 92 

Sailers  v.  Tobias,  7  Johns 114 

Salmon  v.  Clagett,  3  Bland 140,  563 

Saltmarsh  v.  Bower,  22  Ala 161 

Samauda  v.  Furtado,  3  Bro.  C.  C 2.34 

Samuel  v.  Wiley,  50  N.  H 556 

Sanders  v.  King,  6  Mad 113 

Sanquirico  v.  Benedetti,  1  Barb 322 

Saunders  v.  Frost,  5  Pick 358 

Saunders  v.  Leslie,  2  Ball  &  B 129 

Savage  v.  Smalebroke,  1  Vern 106 

Savery  v.  Spence,  13  Ala 322 

Saxon  V.  Barksdale,  4  Dessau 100 

Sayle  v.  Graham,  5  Sim 214 

Scales  v.  Labor,  51  111 90,91 

Schnebly  v.  Schnebly,  26  111 458,  475 

Schneider  V.  Seibert,  50  111...  201,  426,  437 

Scholes  V.  Ackerland,  13  111 181 

School,  etc.  v.  Miller,  54111 46 

School  Trustees  V.  Wright,  12  111 102 

Schwartz  v.  Saunders,  46  111 577,  578 

Schwarz  v.  Sears,  Walk.  Ch 306 

Schwarz  V.  Wendell,  Harring.  Ch 119 

Schyler  v.  Pelissier,  3  Edw.  Ch 2S0 

Sconce  V.  Whitney,  12  111 144,  145 

Scott  V.  Barker,  14  Ohio 320 

Scott  V.  Bennett,  1  Gilm 65 

Scott  V.  Moore,  3  Scam 62 

Scott  V.  Ondeudonk,  14  N.  Y 5-35 

Scott  V.  Shepherd,  3  Gilm 319,  326 

Scott  V.  Wallace,  4  J.  J.  Marsh 397 

Scott  V.  Whitlow,  20  111 47 

Scoville  V.  Billiard,  48  111 427 

Screven  v.  Bostwick,  2  McCord,  Ch 397 

Scrimeyer  v.  Buchannon,  3  A.  K.  Mareh.    51 
Scruggs  V.  Blair,  44  Mise 103 


752 


TABLE   OF   CASES   CITED. 


Scudder  V.  Young,  25  Maine 67,  58 

Suaga  V.  Harrison,  43  Geo 46 

Sea  Insurance  Co.  v.  Day,  9  Paige,  Ch.  171 

Sebring  V.  Mersereau,  Hopk...- 427 

Sedam  v.  Williams,  4  McLean 49 

Seeley  v.  Boehn,  2  Mad 52 

Seighortner  v.  Weissenborn,  5  C.  E. 

Green 342 

Sellen  V.  Lewen,  3  P.  Wms 130 

Stltz  V.  Unna,  6  Wall 44 

Senior  V.  Brebnar,  22  ni 579 

Seton  V.  Slade,  7  Ves 334 

Sevier  v.  Magguire,  49  111 249 

Seymour  v.  Delanccy,  6  Johns.  Ch.  R. 

317,  318 

Seymour  v.  Hazard,  1  Johns.  Ch 556 

Shackell  v.  Macauley,  2  Sim.  &  Stu. . . .  299 
Shaeffer  v.  Weed,  3  Gilm.  170,  577,  581,  582 

591 

Shaffer  v.  Sutton,  49  111 614 

Shaver  v.  Woodward,  28  111 351 

Shaw  V.  Chester,  2  Edw.  Ch 286,  288 

Shaw  V.  Coster,  8  Paige,  Ch.  280,  281,  283 

286 
Shaw  V.  Livermore,  2  Green,  N.  J.  Ch.  321 

Shaw  V.  Shaw,  17  Conn 502 

Shay  V.  Norton,  48  111 536,  537 

Shed  V.  Garfield,  5  Yt 375 

Shelby  v. ,  13  Ves 294 

Sheldon  v.  Hardin,  44  111 45 

Sheldon  v.  Patterson,  55  111 385 

Sheldon  v.  Robbins,  2  Root 45 

Shell  V.  Shell,  2  Sneed,  Tenn 502 

Shepard  v.  Shepard,  6  Conn 44 

Shepherd  v.  Larue,  6  Munf 263 

Shepherd  v.  Lloyd,  2  Y.  &  Jerv 106 

Shepherd  v.  Shepherd,  1  Md.  Ch.  Decis.  323 

Shepherd  v.  Titley,  2  Atk. . .   223 

Sheppard  v.  Starke,  3  Munf 57 

Sheriff'/.  Oil  Co.  7  Phil.  Pa.  R 49 

Sherman  v.  Partridge,  4  Duer 279 

Sherman  V.  Sherman,  18  Texas 506 

Sherrington  v.  Smith,  2  Bro.  P.  C 263 

Shields  v.  Bryant,  3  Bibb  89 

Shillinger  v.  Shillinger,  14  111 513 

Shirley  v.  Ferrers,  3  P.  Wms 295,  296 

Shortall  v.  Mitchell,  57  111 319 

Shotwell  V.  Smith,  20  N.  J.  Eq 267 

Shubrick  v.  Shubrick,  1  McCord,  Ch...  401 

Sibert  v.  McAvoy,  15  111 189 

Sibley  v.  Baker,  23  Mich 390 

Sidney  v.  Sidney,  3  P.  Wms 43 

Sieveking  v  Behrens,  2  My.  &  Craig..  288 

Siffkin  V.  Manning,  9  Paige,  Ch 161 

Simes  v.  Smith,  4  Mad 126 

Simmons  v.  Johnson,  47  111 463 

Simms  v.  Thompson,  1  Bev.  Ch 249 

Simons  v.  Guthrie,  9  Cranch 195 

Sims  v.  Lyle,  Wash.  C.  C.  R 117 

Singleton  v.  Gale,  8  Porter 65 


Singleton  v.  Singleton,  8  B.  Monroe. . .  340 

Sisk  V.  Smith,  Admr.  1  Gilm 464,  465 

Sizer  v.  Miller,  9  Paige,  Ch 405 

Sizer  v.  Sizer,  9  Paige,  Ch 61 

Skinner  v.  Bailey 43,  46 

Skinner  v.  Judson,  8  Conn . .  268,  269 

Skinner  V.  Newberry,  51  111 462 

Skinner  V.  Skinner,  5  Wis 502 

Slack  v.  Wolcott,  3  Mason 241 

Slade  V.  Riggs,  3  Hare 373 

Slee  v.  Manhattan  Co.  1  Paige,  Ch.  353,  358 

Slingsby  v.  Hale,  1  Ch.  Cas 254,  262 

Sloan  V.  Little,  3  Paige,  Ch 134 

Sloan  v.  Maxwell,  2  Green,  Ch 550 

Sloan  V  Moore,  37  Pa.  St.  R 341 

Slocum  V.  Marshall,  Wash.  C.  C 550 

Sloman  v.  Kelly,  3  Younge  &  Coll 133 

Small  V.  Allen,  8  Tenn 549 

Small  V.  Small,  4  Greenl 549 

Smedley  v.  Moore,  26  Wend 320 

Smell  V.  Boudinot,  1  Stockt.  N.  J 47 

Smith  y.  Babcock,  3  Sumner 164 

Smith  V.  Ballentyne,  10  Paige,  Ch 108 

Smith  V.  Barnes,  1  Dick 107 

Smith  V.  Clarke,  4  Paige,  Ch 142 

Smith  V.  Collyer,  8  Ves 565 

Smith  V.  Doyle,  46  HI 351 

Smith  V.  Hampton,  13  Texas 320 

Smith  V.  Henry,  15  Iowa 99 

Smith  V.  Hollenbeck,  46  111.  S.  C.  51  HI.    64 

Smith  V.  Kelley,  27  Maine 359 

Smith  V.  Kornegay,  1  Jones,  N.  C.  Eq. .  102 

Smith  V.  Lasher,  5  Johns.  Ch 134 

Smith  V.  Loomis,  1  Halst.  Ch 134 

Smith  V.  McConnell,  17  111 535 

Smith  V.  Moore,  26  HI 582 

Smith  V.  Moreland,  6  Jones,  N.  C.  Eq. .  102 

Smith  V.  Newton,  38  m 388 

Smith  V.  Powell,  50  111 46,  251,  614 

Smith  V.  Price,  39  111 565 

Smith  V.  Rotan,  44111 62,    63 

Smith  V.  Sacket,  5  Gilm 63 

Smith  V.  Searle,  14  Ves 152 

Smith  V.  Sheppard,  2  Hey 397 

Smith  V.  Smith,  1  Edw.  Ch 618 

Smith  V.  Smith,  4  Paige,  Ch 509,  510 

Smith  V.  Smith,  1  Ired.  Ch 195 

Smith  V.  Smith,  32  111 372 

Smith  V.  Trimble,  27  111 88 

Smith  V.  Turner,  1  Vern 262 

Smith  V.  Wildham,  37  Conn 670 

Smith  V.  Wilson,  26  111 91 

Smythe  V.  Clay,  1  Bro.  P.  C 223,  263 

Snell  V.  Stanley,  58  111 389 

Snow  V.  Benton,  28  111 550 

Snydam  v.  Truosdale,  6  McLean 143 

Snyder  v.  Griswold,  37  111 359,  389 

Snyder  v.  Spaulding,  57  111 320 

Soheir  v.  Williams,  1  Curtis 821 

Souillard  v.  Dias,  9  Paige,  Ch. 887 


TABLE   OF  CASES   CITED. 


753 


Southard  v.  Russell,  16  How.  U.  8 250 

Southern  Bank  v.  Humphreys,  47  111. . .    92 

Spear  v.  Campbell,  4  Scam 62,  65 

102,  401 

Speight  V.  Adams,  1  Freeman,  Ch 254 

Spence  v.  Duren,  3  Ala 44 

Spencer  v.  Bryan,  9  Ves 127 

Spencer  v.  Van  Imsen,  1  Paige,  Ch. ..    160 

Spencer  v.  Wray,  1  Vern 226 

Spoflford  V.  Manning,  6  Paige,  Ch 99 

Spofford  V.  Manning,  2  Edw.  Ch 154 

Sprigg  V.  Bank  of  Mt.  Pleasant,  14  Pet.  351 

Spring  V.  Haines,  21  Maine 372 

Spring   V.    South  Carolina  Ins.  Co.  8 

Wheat 291 

Springer  v.  Rossette,  47  111 539 

Stacy  V.  Randall,  17  HI 136,  140 

Stafford  v.  Brown,  4  Paige,  Ch. . . .  158,  159 

Stafford  v.  Howlett,  1  Paige,  Ch...  164,  165 

203,  213 

Stafford  v.  Mott,  3  Paige,  Ch 100 

Stalling's  Admr.  r.  Goodloe's  Exr.  3 

Mur 256 

Stamps  V.  Kelley,  22  111 64 

Stanberry  v.  Moore,  56  111 169 

Stark  V.  Hillibut,  19  111 172 

Stark  V.  Starr,  6  Wallace 536 

Starke  v.  Mercer,  3  How.  Miss 249 

State  Bank  v.  Stanton,  2  Gilm 103 

Statham  v.  Hall,  Tur.  &  Russ 290 

St.  Clair  v.  Piatt,  Wright 249,  254,  266 

Steed  V.  Baker,  13  Gratt 47 

Steegleman  V.  McBride,  17111 591 

Steele  v.  Gellatly,  41  111 464 

Steele  v.  Magie,  48  111 458 

Steere  v.  Hoagland,  39  111 397,  398 

Stephens  v.  Bichnell,  27  El. . . .  90,  374,  385 

Stephens  v.  Terrell,  3  Monr 167 

Sterling  V.  Sterling,  12  Geo 510 

Stevens  v.  Coffeen,  39  111 200,  201 

Stevens  v.  Guppy,  3  Russ 333 

Stevens  v.  Hay,  15  Ohio 249,  254 

Stevenson  V.  Anderson,  2Ve8.  &Bea.  289 

Stewart  v.  East  Ind.  Co.  2  Vern 103 

Stewart  V.  Howe,  17  111 64 

Stewart  v.  Winters,  4  Sandf.  Ch 566 

Stewartson  V.  Stewartson,  15  HI 522 

Stillwell  V.  McNeeley,  1  Green,  Ch....  106 

Stockton  V.  Williams,  Barring.  Ch 91 

Stokes  V.  Clendon,  Swanst 375 

St.  Louis,  A.  &  T.  R.  R.  Co.  v.  South, 

4SI11 97 

Stone  V.  Anderson,  6  Poster 57 

Stone  V.  rouse,3Cal 338 

Stone  V.  Moore,  26  HI 107,  137 

Stone  V.  Smoot,  39  HI 306 

Stooke  V.  Vincent,  1  Collyer 103 

Storms  V.  Ruggles,  1  Clarke 401 

Story  V.Livingston,  13  Pet..  62,65,183,  186 

Story  V.  Moon.  8  Dana 339 

48 


Story  V.  Norwick  &  Wcs.  B.  R.  Co.  34 

Conn 834 

Story  V.  Randall,  17  111 133 

Stouffer  V.  Machen,  16  111 142 

Stout  V.  Cook,  37  Hi 635,  538 

Stow  V.  Robinson,  24  111 320 

Stowe  V.  RuBsell,  36  HI 47,  99 

Stowe  V.  Steele,  45  111 458,  477 

Strader  v.  Byrd,  7  Ham 250 

Strafford  v.  Ilogan,  2  Ball,  and  Beatt.. .  133 

Strang  V.  Allen,  44  111 183,  353 

Strange  v.  Longlcy,  3  Barb.  Ch 401 

Strawn  v.  Strawn,  46  111 458,  467 

Strawn  v.  Strawn,  50  111 477 

Stribling  v.  Robs,  16111 457,  462 

Strickland  v.  Strickland,  12  Sim 166 

Strickland  v.  Towler,  1  Dev.  &  Bat.  Ch.  320 

Striker  v.  Mott,  2  Paige,  Ch 427 

Strong  T.  Clawson,  5  Gilm 338 

Strong  V.  Downing,  34  Ind 63 

Stuart  V.  Coalter,  4  Rand 48 

Stuart  V.  M.  &  T.  Bank,  18  Johns 195 

Stuart  V.  Worrall,  1  Bro.  C.  C  368 

Sullivan  v.  Finnegan,  101  Mass 537 

Sullivan  v.  Sullivan,  42  111.  88,  145,  443,  445 
Sullivan  v.  Sullivan,  2  Add.  2  Eng.  Eccl. 

R 517 

Sullivan  v.  Tuck,  1  Md.  Ch.  Decis 322 

Summers  v.  Babb,  13  HI 458,  46a 

Sumrall  v.  Ryan,  1  J.  J.  Marsh 166 

Supervisors  Fulton  Co.  v.  M.  &  W.  R.  R. 

Co.  21  HI 134,  138 

Supervisors  v.  States  Attorney,  81  111..    48 

49 

Snrget  v.  Byers,  1  Hemp 43,    4% 

Surrey  V.  Waltham,  2  Anst 283,288 

Surtser  V.  Skiles,  3  Gilm 102 

Sutherland  v.  Ryerson,  24  111 575,  591 

Sutphen  v.  Cushman,  35  HI 183,  351 

Sutton  V.  Gatewood,  6  Munf 108 

Suydam  v.  Beals,  4  McLean 898 

Swift  V.  Allen,  55  111 197 

Swift  V.  Eckf ord,  6  Paige,  Ch 60 

Swift  V.  Swift,  13  Geo 184 

Sydolf  V.  Monkston,  2  Dick 169 


Taintor  v.  Keyes,  43  HI 861 

Talbot  v.  McGhee,  4  Monr 818 

Talbot  V.  Todd,  7  J.  J.  Marsh 197 

Tallmadge  v.  Lovett,  3  Edw.  Ch 105 

Talmage  v.  Pell,  9  Paige,  Ch 813,  316 

Tanner  V.  Hicks,  4  S.  &  M.  R 164 

Tappan  v.  Evans,  12  N.  H 210 

Tarbell  v.  Bowman,  103  Mass 103,  136 

Tarleton  v.  Viotes,  1  Gilm 107,  306 

Tasker  v.  Small,  3  Mylne  &  Craig. 326 

Taylor  v.  Luther,  2  Sumner 1S5,  140 

\ 


754 


TABLE   OF   CASES   CITED. 


Taylor  v.  Merchant's  Fire  Ins.  Co.  9 

How.  U.S 322 

Taylor  v.  Merrill,  55  111 317,  318 

Taylor  v.  Person,  2  Hawks 256 

Taylor  v.  Porter,  7  Mass 359 

Taylor  v.  Taylor,  1  Mac.  &  Gord.  218,    254 

Taylor  V.  Taylor,  8  How.  U.  S 560 

Taylor  v.  Titus,  2  Edw.  Ch 306 

Temple  v.  Lawson,  19  Ark 280 

Teunent  v.  Patton,  6  Leigh 197 

Thanet  v.  Paterson,  Barnard 283 

Thayer  v.  Lane,  Harring.  Ch 44,  425 

Thayer  v.  Thayer,  101  Mass 492 

The  Bank,  etc.  v.  Dunyan,  2  Bland 401 

The  Farmers'  Loan  &  T.  Co.  v.  Sey- 
mour, 5  Paige,  Ch.  R 242 

Theirman  v.  Roland,  3  Harris 320 

The  Justices  v.  Croft,  18  Geo 322 

The  People  v.  City  of  Galesburg,  48  111.  103 

The  People  v.  Cloud,  50  111 97 

Thomas  v.  Brashear,  4  Monr 107,  127 

Thomas  v.  Caldwell,  50  111 46 

Thomas  v.  County  of  Morgan,  39  El...  196 
Thomas  v.  Harvie's  Heire,  10  Wheat.254,  255 

Thomas  V.  Morris,  57  111 89 

Thomas  v.  Thomas,  51  111.  492, 497,  506.  514 

Thomas  v.  Warner,  15  Vt 46 

Thomas  Trustee  v.  Adams,  30  111.  65, 103,  401 
Thomason  V.  Smithson,  7  Porter...  57,    58 

Thompson  v.  Baskerville,  3  Ch.  R 356 

Thompson  v.  Bruen,  46  111 318 

Thompson  v.  Dudley,  3  Edw.  Ch. 226 

Thompson  v.  Ebbets,  Hopk.  Ch..  280,  291 

Thompson  v.  Kyuer,  65  Penn.  St 550 

Thompson  v.  Nixon,  3  Edw.  Ch. . .  398,  399 

Thornberry  v.  Thornberry,  4  Litt 532 

Thorne  v.  Ilalsey,  7  Johns.  Ch 560 

Thorpe  V.  Macauley,  5  Mad 299 

Thuiman  v.  Sheldon,  10  Yerger 48,  102 

Tibbs  V.  Allen,  27  111. .  144, 145,  443,  444,  451 

Tidd  V.  Clare,  Dick 99,  106 

Tiernan  v.  Poor,  1  Gill  &  J 43 

Tilford  V.  Henderson,  1  A.  K.  Marsh. . .     51 

Tillson  V.  Moulton,  23  111 351 

Tilton  V.  Tilton,  9  New  Hamp 44 

Tingley  v.  Cowgill,  48  Mo 548,  549 

Tinlcy  v.  Bank  of  U.  S.  11  Wheat 373 

Tirrell  v.  Cox,  1  Rol.  Abr 299 

Tittsworth  v.  Stout,  49  HI. . . .  138,  306,  4.38 

Titus  V.  Mabce,  25  111 615 

Tobey  v.  County  of  Bristol,  3  Story. . .  318 

Todar  v.  Saneam,  7  Bro.  P.  C 200 

Toddv.  Gee,17Ves 100 

Todd  V.  Lackey,  1  Litt 251 

Todd  V.  Laughlin,  3  A.  K.  Marsh 251 

Tomlinson  v.  McKaig,  5  Gill 253 

Tompkins  v.  Wiltberger,  56  111 76,  92 

Tonkin  V.  Letherbridge,  Coop.  R.  206,  212 

242 
Torrent  v.  Browning,  22  Mich 536 


Town  of  Tamarora  v.  Normal  Univer- 
sity, 54111 94,  95,  103,  104 

Townsend  V.  Camperdown,  9 Trice  ...  325 

Townsend  v.  Griggs,  2  Scam 76 

Townsend  v.  Townsend,  21  111 80 

Townshend  v.  Duncan,  2  Bland 45,  46 

Tradesman's  Bank  v.  Hyatt,  2  Edw.  Ch.  134 

Trailar  v.  Hill,  2  Gilm 225 

Traip  v.  Gould,  15  Maine 269 

Travis  v.  Waters,  1  Johns 197 

Treadwell  v.  Brown,  44  N.  H 100 

Tripp  V.  Vincent,  8  Paige,  Ch.  R 251 

Troughton  v.  Binkes,  8  Ves 355 

Trout  V.  Emmons,  29111 142 

Trowbridge  v.  Carlin,  12  La.  An 502 

True  V.  Haley,  2i  Maine 355 

Truett  V.  Warnwright,  4  Gilm 103 

Trumbull  v.  Trumbull,  23  Ark 509 

Turbitt  V.  Turbitt,  21  111 502 

Turleton  v.  Vietes,  1  Gilm 138 

Turner  v.  Adams,  46  Mo 397 

Turner  v.  Berry,  3  Gilm. .  210,  251,  252,  254 

259 

Turner  v.  Clay,  3  Bibb 318 

Turner  v.  Crebill,  1  Ham 197 

Turner  v.  Dickerson,  1  Stockt.  N.  J. . .  269 

Turner  v.  Hand,  3  Wall,  Jr 550 

Turner  v.  Turner,  44  Ala 532 

Turney  v.  Saunders,  4  Scam 578,  581 

Turpin  v.  Bauton,  Hardin 324 

Turst  V.  Turst,  2  Lee 517 

Tuttle  V.  Garrett,  16  111 144 

Twyman  v.  Twyman,  27  Mo 509 

Tyns  V.  Bust,  37  Geo 281,  283 

Tyson  V.  Watts,  1  Md.  Ch.  Decis 3!8 

U 

Union  Bank  V.  Geary,  5  Pet 142 

Union  Ins.   Co.   v.  Van  Rensselaer,  4 

Paige,  Ch 376 

U.  S.  V.  Stm-ges,  1  Paine's  R, 397 

United  States  v.  Sampeyas,  1  Hemp.. .  249 
United  States  Bank  v.  Saline  Bank,  1 

Pet.: 268 

United  States  Bank  v.  Shultz,  3  Ham. 

43,  44 
University  Col.  v.  Foxcroft,  2  Chan  R.  233 

Upham  V.  Brooks,  2  W.  &  M . .  352 

Urlin  V.  Hudson,  1  Vcrn 126 

Urmston  v.  Singleton,  cited  in  Seaton 

on  Decrees 335 

Utslerv.  Utsler,  Wright,  Ch. 506 

V 

Vail  V.  Nelson,  4  Rand 319 

Valleau  v.  Valleau.  6  Paige,  Ch 492 

Van  Antwerp  v.  Hulburd,  8  Blatchf .  U. 
S.O.  C 44 


TABLE   OF   CASES   CITED. 


755 


Van  Cleef  v.  Sickles,  5  Paige,  Ch. .  401,  405 

Van  Court  V.  BuBhnell,  21  HI 578,  580 

Vandcrveer  v.  Holcomb,  21  N.  J.  Eq...  312 

Vane  v.  Barnard,  1  Salk 564 

Van  Epps  v.  Van  Epps,  6  Barb.  N.  Y..  492 

Vanhorn  v.  Duckworth,  7  Ired.  Ch 105 

Van  Horn  v.  Keenan,  28  111 550 

Vanmeter  v.  Vanmeter,  3  Gratt.  Va 197 

Van  Pelt  v.  Dunford,  58  111 582 

Van  Rensselaer  v.  Price,  4  Paige,  Ch..  161 

Van  Sandon  v.  Moore,  11  Ves 138 

Vansant  v.  Allmon,  US  111.  371,  372,  376,  385 

Vansendan  v.  Rose,  2  Jac.  &  W 565 

Van  Syckel  v.  Richardson,  13  111 397 

Vanzant  v.  Vanzant,  23  111 511 

Varick  v.  Dodge,  9  Paige,  Ch.  114,  115,  149 
Varick  v.  Smith,  5  Paige,  Ch. . . .  47,  49,  101 

Varm  v.  Harget,  2  Dev.  &  Bat 50 

Vasser  v.  Vasser,  23  Miss 323 

Vanghanv.  Fitzgerald,  ISch.i&Lef.  297,  299 

Vcazie  v.  Williams,  3  Story 204 

Vennum  v.  Davis,  35  111 268 

Vere  V.  Glynn,  2  Dick 165 

Vermillian  v.  Bailey,  27  111 340 

Vermilyea  v.  Fulton  Bank,  1  Paige,  Ch.  144 

Vermilyea  v.  Odell,  4  Paige,  Ch 172 

Verplank  v.  Caines,  1  Johns.  Ch 98 

Verplank  v.  The  M.  Ins.  Co.  1  Ed.  Ch. 

165,  166,  167,  168 

Vertner  v.  Griffiths,  Walker 166,  167 

Very  v.  Levy,  13  How.  U.  S 47 

Vlcary  v.  Widger,  1  Sim 288 

Vieley  v.  Thompson,  44  111 45,  104 

Vigers  v.  Lord  Audley,  9  Sim.  207,  214,  219 

230 

Vignos  V.  Vignos,  15  111 502 

Vining  v.  Leeman,  45  111 47 

Von  Glahn  v.  Von  Glahn,  39  111.   502,  512 

523 

Von  Glahn  v.  Von  Glahn,  46  111 196 

Voorhees  v.  Demeyer,  2  Barb.  R 321 

Vose  v.  Philbrick,  3  Story 42 

Vroom  V.  Ditmas,  4  Paige,  Ch 201,  358 

w 

Wabash  &  Erie  Canal  Co.  v.  Beers,  2 

Black,  U.  S.  R 401 

Waddams  v.  Humphrey,  22  HI  ...  189,  190 

Wagoner  v.  Speck,  3  Ham 398 

Wagstaff  V.  Bryan,  1  Russ.  &  My . .  161,  235 

Wakeman  v.  Grover,  4  Paige,  Ch.  134,  400 

401,  403 

Walburn  v.  Ingilby,  1  Mylne  &  Keene.    47 

Walden  v.  Brady,  14  Pet 166 

Waldron  v.  Waldron,  5  P.  E.  Smith,  Pa.  533 
Wales  v.  Bank  of  Michigan,  Barring. 

Ch 107 

Waif  ord  v.  Phelps,  2  J.  J.  Marsh 102 

Walker  V.  Cary,  53111.  187,198 


Walker  v.  Devereaux,  4  Paige,  Ch...  58,  69 

Walker  v.  Gilbert,  7  S.  &  M 203 

Walker  V.  Ilallett,  1  Ala 164,210 

Walker  v.  Laflin,  26  HI 425 

Walker  v.  Taylor,  42  Ala 49 

Walker  v.  Walker,  3  Kelly 134 

Wall  V.  Stubbs,  2  Ves.  &B 120 

Wallace  v.  Ilawley,  4  J.  J.  Marsh 65 

Wallace  v.  McLaughlin,  57  111 321 

Waller  V.  Taylor,  42  Ala 102 

Wallwork  v.  Derby,  40  111 56,  140,  141 

Walsh  v.Reis,  50  111 477 

Walsh  V.  Smythe,  3  Bland 168,  169 

Walton  V.  Crowley,  14  Wend 351 

Walton  V.  Van  Mater,  Halst.  Dig 193 

Walts  V.  Waddle,  6  Pet 319 

Walworth  v.  Holt,  4  Milne  &  Craig. ...  341 

Ward  V.  Davidson,  2  J.  J.  Marsh 313 

Ward  V.Dewey,  16  N.  Y 536 

Ward  V.  Jewett,  Walker 88 

Ward  V.  Owens,  12  111 187 

Warner  V.  Campbell,  26  111 175 

Warner  v.  Hilm,  1  Gilm 385 

Warner  v.  Tomlinson,  1  Root 196 

Warren  v.  Richmond,  53  111 47,  319 

Warren  v.  Warren,  56  Maine 49 

Warring  v.  Mackreth,  Forrest,  Ex.  Rep.  273 
Warrington  v.  Wheatstone,  1  Jac.  283,  388 

Washburn  v.  Dewey,  17  Vt 323 

Washburn  v.  Washburn,  5  N.  H 493 

Washington  etc.  Road  v.  State,  19  Md..    99 

Waters  v.  Brown,  7  J.  J.  Marsh 321 

W aters  v.  Glan ville,  Gilb.  R 132 

Waters  v.  Howard,  1  Md.  Ch.  Decis....  322 

Waters  v.  Taylor,  2  Ves.  &  B 340,  341 

Waters  v.  Taylor,  15  Ves 340 

Waters  v.  Travis,  9  Johns.  R 320 

Watkins  v.  Bush,  2  Dick 107 

Watkyns  V.  Watkyns,  2  Atk 43 

Watson  V.  Cox,  1  Ired.  Ch 50 

Watson  V.  Hunter,  5  Johns.  Ch  565 

Watts  V.  Crawford,  11  Paige,  Ch 205 

Watts  V.  Lawrence,  3  Paige,  Ch 96 

Watts  V.  Waddle,  6  Pet 321 

Waugelin  v.  Goe,  50  111. .  88,  95,  98,  103,  108 

615 

Waugh  V.  Robbins,  33  111 44 

Weaver  v.  Wilson,  48  111 388 

Webb  v.  A.  M.  &  P.  Ins.  Co.  5  Gilm.  172,  177 

Webb  V.  Pell,  3  Paige,  Ch.  R...251,  252,  255 

256,  265 

Webster  v.  Fol.«om,  58  Maine 398,  402 

Webster  v.  French,  11  111 63,  327 

Webster  v.  Webster,  55  111 44 

Weed  V.  Pierce,  9  Cow 398 

Weed  V.  Terry,  2  Doug 322 

Weider  v.  Clark,  27  111 143 

Weirick  v.  De  Zoya,  2  Gilm 47 

Wellesly  v.  Wellesly,  17  Sim 218 

Welsh  v.  Bayard,  21  N.  J.  Eq SS6 


r56 


TABLE   OF   CASES   CITED. 


Welsh  V.  Byrns,  38  Dl 612,  614 

Welsh  V.  Lewis,  31  111  241 

Wells  V.  Wood.  10  Ves 152 

Welton  V.  Copelaud,  7  Johns.  Ch 427 

Wendell  v.  New  Hampshire  Bank,  9  N. 

H 359 

Wener  v.  Heintz,  17  111 285 

West  V.  Fleming,  18111 575,  581 

West  V.  Hall,  3  Har.  &  J 46 

West  V.  McCarty,  4  Blackf 397 

West  V.  Randall,  2  Mason 49,    63 

West  V.  Schucbly,  54  111 47,  536 

West  V.  Williams,  1  Md.  Ch.  Decis 158 

West.  Un.  Teleg.  Co.  v.  P.  &  A.  Teleg. 

Co.  49  111 80,  313,  316 

West  y.  Walker,  6  Blackf 557 

Westcott  V.  Cady,  5  Johns.  Ch.  R 246 

Westcott  V.  Minn.  Mining  Co.  23  Mich.     62 

Wetherell  v.  Collins,  3  Mad 357-358 

Wetherell  v.  Ohlendorf ,  61  111 580 

Wetherf ord  v.  James,  2  Ala  197 

Wheeler  v.  Kinzie,  49  111 466 

Wheeler  v.  Trotter,  3  Swanst 43 

Wheeler  v.  Wheeler,  18  111 523,  533 

Whispell  V.  Whispell,  4  Barb 509,  526 

Whistler  v.  Webb,  Bumb 357 

WTiitcomb  v.  Golding,  2  P.  Wms 61 

Whitcomb  v.  Murchin,  5  Mad 206 

White  V.  Buloid, 2 Paige,  Ch..  307,  312,  314 

316 

White  V.  Delschneider,  1  Oregon 102 

White  V.  Hoflfackcr,  27  111 182 

White  V.  Law,  7  Vt 318 

White  V.  Lewis,  2  A.  K.  Marsh 45 

White  V.  Morrison,  11  111...  44,  89,  170,  187 

White  V.  White,  45  N.  H 514 

White  V.  Yaw,  7  Vt 43,    44 

Whitehurst  v.  Coleen,  53  HI  37 

Whitemarsh    v.    Campbell,     1    Paige, 

Ch 161,  165,  168 

Whitenack  v.  Stryker,  1  Green,  Ch 550 

Whiteside  v.  Pulliam,  25  111 183 

Whiting  V.  Bank  of  U.  S.  13  Pet. 197,  250,  252 

Whiting  V.  Rush,  2  Younge  &  Coll 153 

Whiting  V.  White,  Coop 353 

Whitney  v.  Mayo,  15  111 62,  63 

Whitney  v.  McKenney,  7  Johns.  Ch.. .  373 

Whitney  v.  Whitney,  5  Dana 50 

Whittaker  v.  Degraflfenreid,  6  Ala 45 

Whittingham  v.  Burgoyne,  3  Anst 104 

Wichalse  v.  Short,  3  Bro.  P.  L 127 

Wickley  v.  Thompson,  44  111 94 

Wiggin  V.  Mayor,  etc.  9  Paige,  Ch 46 

Wightmanv.  Hart,  37  111 142 

Wightman  v.  Hatch,  17  111 398,  400 

Wigley  V.  Whitaker,  1  Beavan 315 

Wilber  V.  Collier,  1  Clarke 166 

Wilbur  V.  Almy,  12  How.  U.  S 373 

Wilbur  V.  Collier,  1  Clarke 404 

Wilday  v.  Webster,  42  111 56,  142 


Wiley  V.  Platter,  17  HI 3ia 

Wiley  V.  Sutherland,  41  HI. 613 

Wilford  V.  Beaseley,  3  Atk 194 

Wilkes  V.  Rogers,  6  J  ohns.  Ch 43,  186- 

Wilkinson  v.  Beal,  4  Mad 57 

Wilkinson  v.  Lovell,  2  Dick 234 

Wilkinson  v.  Yale,  6  McLean 397,  39& 

Willard  v.  Taylor,  8  Wallace 326 

Willenborg  v.  Murphy,  36  111. . .  56,  140,  141 

Willetts  V.  Burgess,  34  111 350 

Willhite  V.  Pierce,  47  111 89,  182,  187 

Williams  v.  Bishop,  15  111 189,  190 

Williams  v.  Chapman,  17  111.. .  576,  583,  591 

Williams  v.  Cooke,  10  Ves.  R 227 

Williams  v.  Mattocks,  3  Vt 32(y 

Williams  v.  Soulier,  55  111 130 

Williams  V.  Springfield,  1  Vem 358 

Williams  v.  Stewart,  3  Meriv 99- 

Williams  v.  Wiggand,  53  111 426,  42f 

Williamson  V.  Champlin,  1  Clarke 375 

Williamson  v.  New  Albany  &  S.  R.  R. 

Co.  2  Red.  Railw 371 

Williamson  v.  Williamson,  1  Johns.  Ch.  509 
Williamson  V.Wilson,  1  Bland.  340,  342,  401 
Willis  r.  Henderson,  4  Scam...  56,  63,  140- 

141 

Wilson  V.  Geislcr,  19  111 385 

Wilson  V.  Greathouse,  1  Scam 75 

Wilson  V.  Greenwood,  1  Swanst 340 

Wilson  V.  Lussen,  5  Cal 338 

Wilson  V.  Nettleton,  12  111 96 

Wilson  v.  Webb,  2  Cox 254 

Wilson  V.  Wilson,  23  Md 102 

Wilson  V.  Wilson,  Wright,  O.  Ch 511 

Wilson  V.  Wilson,  2  Hagg.  Ch.  R 517 

Windham  v.  Windham,  Freem 200 

Windsor  v.  Windsor,  2  Dick 58 

Winkler  V.  Winkler,  40  HI.  45,  46,  103,  614 

Winn  V.  Albert,  2  Md.  Ch.  Decis 210 

Winnipiseogee  Lake  Co.  v.  Worster,  9 

Foster 42 

Winslow  V.  Newlan,  45  111 177 

Winston  v.  Johnson,  2  Mnnf 253,  254 

Wise  V.  Twiss,  54  111 164,  166 

Wiser  v.  Blackley,  2  Johns.  Ch.  R.  249.  250 

253,  256 
Wisner  V.  Barnet,  4  Wash.  C.  C...  99,  102 

Witeman  v.  Witeman,  45  HI 523 

Witherspoon  v.  Carmichael,  6  Ired.  Eq.    47 

Wolf  V.  Wolf,  Wright,  Ch 514 

Wolfe  V.  Wolfe,  3  Har.  &  J 133 

Wood  V.  Beadel,  3  Sim 59 

Wood  V.  Genet,  8  Paige,  Ch 44 

Wood  V.  Gosa,  24111 96 

Wood  V.  Keyes,  6  Paige,  Ch 201 

Wood  V.  Mann,  1  Sumner 115,  135,  161 

Wood  V.  Mann,  2  Sumner 254 

Wood  V.  Morrell,  1  Johns.  Ch 134 

Wood  V.  Rowe,  2Bligh...   114 

Wood  V.  Scott,  14  Vt 65 


TABLE   OF   CASES   CITED. 


Wood  V.  Strickland,  2  Vee.  &  B 131 

Wood  V.  Wood,  2  Paige,  Ch 518 

Wood  V.  Wood,  Sired.  Eq 510 

Woodsidc  V.  Woodside,  21  111 190 

Woodward  v.  Aatley,  Bund 95 

Woodward  v.  Harris,  2  Barb.  R 321 

Woodward  v.  Schatzell,  3  Johns.  Ch...  560 

Woodward  v.  Woodward,  1  Dick 205 

Woodworth  V.  Huntoon,  40  111 195 

Wooley  V.  Stone,  7  J.  J.  Marsh 397 

WooUey  v.  Magie,  26  111 458 

WooHter  V.  Woodhull.  1  Johns.  Ch. . . .     90 

Woots  V.  Tucker,  2  Vern 263,  265 

Worthington  v.  Lee,  2  Bland 154 

Wray  v.  Hutchinson,  2  Mylne  &  Keene  303 

Wray  v.  Wray,  19  Ala 492 

Wray  v.  Wray,  33  Ala 492 

Wright  V.  Atkyns,  1  Ves.  &  B 59 

Wright  V.  Bates,  13  Vt 358 

Wright  V.  Bond,  11  Ves 334 

Wright  V.  Dane,  22  Pick 42,  44,    45 

Wright  V.  Howard,  6  Mad 164 

Wright  T.  Langley,  36  111 374 


Wright  V.  McNeely,  11  111 327 

Wright  T.  Wright,  3  Texas 608 

Wych  V.  Meal,  3  P.  Wms 103 

Wylder  v.  Crane,  53  111  ...  66, 108, 141,  162 

Wynkook  V.  Cowing,  21I1L 142 

Wynn  v.  Morgan,  7  Vea 834 

Wynn  V.  Smith,  40  Geo 817 

Wynne  V.  Jackson,  1  McClel.  &  Yonngo.  100 

Y 

Yarborough  v.  Thompson,  3  S.  &  M.. .  279 
Yates  V.  Monroe,  13  111. ..  251,  253,  267,  278 

Yates  V.  Tisdale,  3  Edw.  Ch 280,  288 

Young  V.  Keighly,  16  Ves 254 

Young  V.  Overseers,  etc.  2  Green,  N.  J.  312 

Young  V.  Young,  4  Mass 493 

Youngblood  v.  Scamp,  3  S.  &  M 61 

Younge  v.  Forgey,  4  Hey w 251 

z 

Zoll  V.  Campbell.  3  W.  Va t70 


TABLE  OF  ADDITIONAL  CASES  CITED  IN  SECOND  EDITION. 


A 

Adams  v.  Adame,  79  111 570 

Adams  v.  Robertson,  40  111 657 

Adams  v.  Russell,  85  111 611 

Addix  V.  Fahnestock,  15  111 654 

Adlard  v  Adlard.  65  111 140 

Alley  V.  Supervisors.  76  111 281 

Ambre  v.  Weishaar,  74'  111 548 

Ambrose  v.  Weed,  11  111 659 

Andrews  v.  Andrews.  69  111 524 

Andrews  v.  Knox  Co.,  70  111 141 

Angles  V.  Angles,  81  111 492 

Armstrong  v.  The  People,  74  111 658 

Attorney  General  v.  111.   Agr.  College, 

85  111 570 

Austin  v.  Bainer,  40  111 674,  675,  677 

B 

Babbitt  v.  Babbitt,  69  El 526 

Baker  v.  Palmer,  83  111 38 

Ballance  v.  Leonard,  40  111 663,  679 

Barnes  v.  Bragg,  70  111 164 

Bassett  v.  Bratton,  86  111 559 

Bast  V.  Bast,  82  111 492 

Becker  v.  Becker,  79  111 524 

Bentley  v.  Lill,  40  111 686 

Berdell  v.  Berdell,  80  111 503 

Bergen  v.  Riggs,  40  111 664,  679 

Bertrand  v.  Taylor,  87  111 661 

Biggs  V.  Clapp,  74  111 611 

Bills  V.  Stanton,  69  111 694 


Black  v.  Lusk,  69  III 89 

Blackberry  v.  The  People,  5  Gilm.  655,  659 

Blake  v.  Blake,  70  111  492 ;  80  111 517 

Board  of  Ed.  v.  Neidenbergcr,  78  111  ...   575 

Bostwick  v.  Williams,  40  111 681 

Bouton  v.  Supervisors,  84  111 575 

Bowers  v.  Green,  1   Scam 647 

Boyle  V.  Carter,  24  111 695 

Boyle  V.  Levings,  28  111 661 

Boynton  v.  Champlin,  40  111.  674,  679,  680, 701 
Breaton  v.  Johnson,  1  Bradwell's  App. 

Ct.  R 650 

Bressler  v.  McCune.  56  111 663 

Bridge  Co.  v.  L.  N.  A.  &  St.  L.  Ry.  Co., 

72111 611 

Bristol  v.  City  of  Chicago.  21  111 672 

Brizzolari  v.  Mosher,  71  111 537 

Brockenbrough  v.  Dresser,  67  111 187 

Brooks  V.  Bruyn,  40  111 664,  679 

Brooks  V.  Kerns,  86  111 525 

Brown  v.  Lowell.  79  111 611 

Bryant  v.  The  People,  71  111 653 

Burham  v.  Lamar  Ins.  Co.,  79  111 422 

Bumap  V.  Wight,  14  111 648 

Butterworth  v.  Brown,  26  111 683 

C 

Cable  V.  Ellis,  86  111 395.  673 

Cameron  v.  Savage,  40  111 652,  681 

Carpenter  v.  Calvert,  83  111 550 

Carr  v.  Miner,  40  111 654,  655 


758 


TABLE  OF  CASES   CITED. 


C.  B.  &  Q.  R.R.  Co.  V.  Lee,  68  111 663 

Chamblin  v.  Blair,  58  111 675 

Chavis  V.  Reed,  -lO  111 683 

Cheeney  v.  City  Nut.  Bank,  77  111 695 

Chestnut  v.  Chestnut.  77  111 534 

C.  &  A.  R.R.  Co.  V.  R.  R.  I.  &  St.  L. 

R.R.  Co.  72  III 683 

City  of  Chit-asro  v.  Valcum  Iron  Works, 

2  Bradu  ell's  App.  Ct.  R 640,  641 

Clark  V.  Manning,  90  111 579 

Clark  V.  Marfleld,  77  111. . . .  77,  192,  193,  647 

Clarke  v.  Bell,  2  Litt 671 

Clement  v.  Newton,  78  111 581 

Cogswell  V.  Armstrong,  77  111 279,  281 

Colby  V.  Small,  40  111 658 

Commissioners  v.  The  People,  31  111.  ..  661 

Comstock  V.  Ilitt.  40  111 687 

Confrey  v.  Stark,  73  111 685 

Convey  v.  Sheldon,  1  Bradweirs  App. 

Ct.  R 695 

Conwell  V.  Watkins,  71  111 65,  539,  546 

Corbus  V.  Teed,  69  111 171,  335 

Cornelius  v.  Coons,  Breese 638 

Corwin  V.  Shoup,  7o  111.     675 

Coarsen  v.  Browning,  86  111 694 

Coursen  v.  Hixon,  78  111 671 

Cox  V.  City  of  Tuscola,  2  Bradwell's 

App.  Ct.  R 670 

Crain  v.  Kennedy.  85  111 102 

Crowl  V.  Nagle,  86  111 581 

Crull  V.  Keener.  17  111 638,  646 

Culver  V.  Elwell,  73  111 581,  611 

Cunningham  V.  Craig,  53  111 661 

Cunningham  v.  Ferry,  74  111 611 

Cunningham  V.  Loomis,  17  111 638 

Curtis  V.  Baugh,  90  111 673 

D 

Davidson  V.  Bond,  12  111 647 

Davis  V.  Conn.  M.  Life  Ins.  Co.,  84  111..  611 

Deenis  v.  Deenis,  79  111 524 

Delahay  v.  McConnel,  4  Scam 700 

De  Leu w  v.  Neeley,  71  111 89,  395 

Dickerson  v.  Hendryx,  88  111 672 

Dickman  v.  Wood,  69  111 395 

Dickson  v.  C.  B.  &  Q.  R.R.  Co.,  81  111. .  673 

Dinet  v.  Eigenmann,  80  111  . . .   524 

Dinet  v.  Pfirshing,  86  111 517,  674 

Dobschuets  v.  Holliday,  82  111 578 

Dowden  v.  Wilson,  71  111 395 

Drew  v.  Mason,  81  111 511 

Dukes  v.  Rowley.  24  111 660 

Dunham  v.  City  of  Chicago,  55  111 660 

Dunham  v.  Hyde  Park,  75  111 99 

Dunphey  v.  Riddle,  86  111 611 

Dutch  v.  Edwards,  1  Scam ...  695 

E 

Eaton  v.  Sanders,  43  111 663 

EdwardB  v.  Evans,  61  Ul 696 


Elder  v.  Jones,  85  111 64 

Emmons  v.  Moore,  85  111 538,  570 

Emerson  V.  W.  U.  R.R.  Co.,  75  111 115 

Erickson  v.  Rafferty,  79  111 164 

F 

Farnham  v.  Famham,  73  111 503,  509 

Fellers  v.  Rainey,  82  III 251 

Ferris  V.  McClure.  40  111 663 

Field  V.  The  People,  2  Scam 633 

Fight  V.  Hall,  80  111         452 

First  Baptist  Church  v.  Andrews,  87  111. 

611,  696 

Fitch  V.  Lathrop.  2  Root 671 

Fix  V.  Quinn,  75  111 671 

Flagle  V.  Crow,  40  111 664 

Fleese  v.  Russell,  13  111     638 

Fleming  v.  Carter.  87  111  317 

Fonville  v.  Sau  sser,  73  111 647 

Foreman  v.  Stickney,  77  111 144,  256 

Franey  v.  True,  26  111 661 

Freeborn  v.  Denman,  2  Halst 671 

Frink  v.  Phelps.  4  Scam 655,  657 

Fuller  V.  Little.  61  111 701 

Fuller  V.  Robb,  26  111 647 

G 

Gage  V.  Eich,  56  HI 638 

Gage  V.  Rohrbach,  56  111 6:i8 

Gale  V.  Kinzie.  80  HI 458,  478 

Garden  City  Ins.  Co.  v.  Stagart,  79  111. .  663 

Gardner  v.  Diedrich.  40  111 679 

Gecura  v.  Dean,  40  111 664 

Gibbs  V.  Blackwell,  40  111.  651,  665,  671,  674 

679,  680 

Gilbert  v.  Maggard,  1  Scam 672 

Gillespie  v.  Rout.  40  111 686 

Gochenour  v.  Mowry,  40  111 686 

Goodman  v.  Jones,  26  Conn 186 

Goodrich  v.  Cook,  86  111 664 

Gould  V.  Steinbury.  84  111 422.  5.37 

Grandeis  v.  Hartwell.  90  111 583,  591 

Gregg  V.  Brower.  67  111 164,  193 

Greenbaum  v.  Austrian.  79  111 478 

Greenleaf  v.  Beebe.  80  111 581 

Groves  v.  Webber,  73  111 538 

Gunnell  v.  Cockerill,  84  111 57 

H 

Haas  V.  Chicago  Building  Co.,  89  111. . . .  395 

Hahn  V.  Huber,  m  111 189,  373 

Hall  V.  FuUerton,  69  HI 448 

Hall  V.  Hamilton.  74  111 675 

Hall  V.  Jones,  32  111 675 

Hall  V.  Thode.  75  111 638,  647 

Hancock  v.  Harper.  86  111 352 

Hanford  v.  Blessing,  80  111 395 

Harding  v.  Jones,  86  111 535 

Harding  v.  Larkin,  4i  111 645,  663 

Hards  v.  Burton,  79  111. . . .  371,  372,  395,  43T 


TABLE   OF   CASES   CITED. 


759 


Harper  v.  Ely,  70  111 358 

Harrison  v.  Siugleton,  2  Scam 638 

Hartman  v.  Belleville  &  O.  F.  R.R.  Co. 

64  111 647 

Ilartshorn   v.    Dawson,    2    Bradwell's 

App.  Ct.  R 64u,  041 

Haskell  v.  Brown,  65  III 152 

Hatfield  v.  Fowler,  60  111 673 

Havinghorst  v.  Lindberg,  67  111  647 

Hawhe  v.  Snydaker,  86  111 388,  390 

Haworth  V.  Uuling,  87  111 395 

Hay  V.  Hayes,  56  111 661 

Hayes  v.  Caldwell,  5  Gilm 6:^8 

Heald  V.  Wright,  75  111 352 

Heath  v.  Hurless,  73  111 279 

Hedges  v.  Mace,  73  111 76 

Hellinan  v.  Schneider,  75  111 281 

Hemiup,  in  the  matter  of,  3  Paige  Ch. .  186 

Ilenrichsen  v.  Hodgen,  67  111 425 

Henrickson  v.  Van  Winkle,  21  111 675 

Hickman  v.  Haines,  5  Gilm 656 

Iliggins  V.  Curtis,  82  111 422 

Hitt  V.  Scammon,  82  111 478 

Hoag  V.  Starr,  69  111 389 

Hob!<on  V.  Paine,  40  111 637 

Hochlander  v.  Hochlander,  73  111 74,  75 

Hoigv.  Sharp,  84  111 251 

Holbrook  v.  Nichol,  40  111 681 

Holden  v.  Herkimer,  53  111 ... .  637,  683,  686 

Hollowbush  V.  McConnel,  12  111 700 

Holt  V.  Rees,  46  111 675 

Hopkins  v.  Snedaker,  71  111 57 

Horn  V.  Neu,  63  II! 661 

Howell  V.  Barrett,  3  Gilm 695 

Hoyt  V.  Tuxbury,  70  111 165 

Hundley  v.  Commissioners  etc.,  67  111..  634 
Hunter  v.  Hatch,  45  111 696 

I 

111.  B.  Society  v.  Baldwin,  86  HI 673 

111.  Cent.  R.R.  Co.  v.  Garish,  40  111.  666,  679 
111.  Cent.  R.R.  Co.  v.  Parks.  88  111. .     . .  373 

111.  L.  L.  Co.  V.  Bonner,  75  111 452 

Israel  v.   Town  of  Whitehall,  2  Brad- 
well's  App.  Ct.  R 683 

J 

Jackson  v.  Warren,  32  HI 672 

Jefferson  v.  Kennard,  77  111 141 

Jenkins  v.  Doolittle,  69  111 .' 570 

Jenkins  v.  Jenkins,  86  111 492 

Johnson  v.  Estabrook.  84  111 611 

Johnston  v.  Bancock.  38  111 682 

Johnston  v.  Maples,  49  111 673 

Jones  V.  Kennicott,  83  111 557 

Jones  V.  Neely,  72  HI 199 

Jimes  V.  Sprague,  2  Scam 680 

Jones  V.  Wright,  4  Scam 647 

Judson  V.  Stephens,  75  111 99,  252,  578 


K 

Keel  V.  Bentley,  15  111 638 

Kelleher  v.  Tisdale,  23  111 683 

Keller  v.  Brickley,  63  111 660 

Kelly  V.  Kellogg,  79  111 511,  683 

Kendall  v.  Liuibrrg.  (,i)  111 181 

Kennedy  v.  Kennedy,  66  111.  647,  87  111..  497 

Kerfoot  v.  Brcckcuridge,  87  111 317 

Kern  v.  Zink,  .55  111  675,  676 

Kingsbury  v.  Buckner.  70  111 452 

Klock  V.  Walter,  70  111 395 

Knowles  v.  Knowles,  86  111 352 

Kolb  V.  O'Brien,  86  111 210 

L 

Labidie  v.  Hewitt,  85  111 425,  452 

Lampsett  v  Whitney,  3  Scam 700 

Langston  v.  Bates.  84  111 324 

Larrison  v.  P.  A.  &  D.  R.R.  Co.,  77  111.  143 

Lawrence  v.  Fast,  20  111 660 

Lawrence  v.  Lawrence,  73  111 92 

Lazell  V.  Francis,  4  Scam 695 

LeMoyne  v.  Quimby .  70  111  452 

Lcufers  v.  Henke,  73  111 478 

Lewis  V.  Lamphere,  79  111 422 

Lombard  v.  Kinzie,  73  111 478 

Long  V.  Barker,  85  111 281 

Lowry  v.  Bryant,  2  Scam 655 

L.  S.  &  M.  S.  R.R.  Co.  V.  McMillan,  84 

III 599,  672 

Lncas  v.  Farrington,  21  111 661 

Lunt  V.  Stephens,  75  111 581,  583 

M 

Mack  V.  Brown,  73  111 75,  77 

ISIahcr  v.  Laiifrom.  86  111 .395 

Marlow  v.  Marlow,  77  111 570 

Marseilles  Land  Co.  v.  Aldrich,  86  111.  6a3. 684 

Marsh  v.  Green.  79  111 164,  373,  374 

Martin  v.  Gilmore,  72  111 9> 

Mason  v.  Bair,  40  111 663 

McClay  v.  Norris,  4  Gilm 647 

McConnel  v.  Ayers,  3  Scam 675 

McCormick  v.  Sage,  87  HI 317 

McDonald  V.  Arnout.  14  111 661 

McKindley  v.  Buck.  43  HI 661 

McNab  V.  Young,  81  HI 75 

McPhearson  v.  Nelson,  44  111 701 

Meeks  v.  Sims.  84  111 591,  611 

Meeker  v.  Meeker,  75  111 189 

Mehrle  v.  Dunne,  75  111 611 

Metz  V.  Lowell,  a3  111  611 

Meyers  v.  Andrews,  87  111 672 

Milcolm  V.  Andrews,  68  111 557 

Miller  v.  Handy.  40  111 75 

Miller  v.  Whitaker,  33  111 662 

Mills  V.  Lockwood,  40  111 700 

Mitchell  V.  Byms,  67  HI 405 

Montague  v.  Wallahan,  84  111 696,  700 


760 


TABLE  OF  CASES   CITED. 


Moodr  y.  Vreeland,  7  Wend 671 

Moore  v.  Mansfield,  47  111 637 

Moorehouse  r.  Moulding,  74  111 611 

Morgan  v.  Corlies,  81  111 151,  174 

Morgan  v.  Ladd,  2  Gilm  ... 675 

Morse  v.  Thorsell,  78  111  458 

Morton  V.  Smith,  86  111 326 

Moshier  v.  Meok,  80  111 397 

Mosier  v.  Norton,  83  111  358 

Mott  V.  Harrington,  15  Vt 186 

Mulvey  v.  Gibbons,  87  111 373   395 

Murch  V.  Mayers,  85  111 165,  395 

Murphey  V.  The  People,  37  111 661 

Myers  v.  Manny,  63  111 638 

N 

Napperv.  Short,  17  111 649 

Nason  v.  Letz,  73  111 661 

Nat.  Ins.  Co.  v.  Webster,  83  111 395 

Newhall  v.  Kastens,  70  111 279,  611 

Newlin  v.  Snyder,  78  111 81 

Newman  v.  Newman,  69  111 517 

Nichol  V.  Todd,  70  111 478 

liTichols  y.  Mitchell.  70  111 436 

Nichols  V.  Padfield,  77  111 452 

Niles  V.  Harmon,  80  111 390,  396 

Nixon  V.  Halley,  78  111 695 

Northern  Trans.  Co.  v.  McCIary,  66  111.  69U 

0 

Oder  V.  Putnam,  22  111 638 

-O'Brien  v.  Fry,  82  111 142,  ;i'.)0 

O.  &  Miss.  R.R.  Co.  V.  Lawrence  Co  , 

27  111 637 

Orrv.  N.  M.  L.  Ins.  Co.,  86  111 611 

P 

Padfield  v.  Padfield,  72  111 570 

Page  V.  Greeley,  75  111 44 

Parr  v.  Van  Horn,  40  111 656 

Peake  v.  The  People,  7i)  111 637 

Pearle  v.  Welman,  4  Gilm 700 

Pearson  v.  Bailey,  1  Scam 695 

Peck  V.  Stevens,  5  Gilm 695 

Pennell  v.  Lamar  Ins.  Co.,  73  111.  185, 186,  401 

Penticost  V.  Magahee,  4  Scam 638 

Peopie  V.  Brislin,  80  111 673 

Peopie  V.  Glenn,  70  111 636 

People  V.  Leland,  40  111        645 

People  V.  McFarland,  3  Bradwell's  App. 

Ct.   R 638 

People  V.  Neil,  3  Bradwell's  App.  Ct.  R.  638 

People  V.  Pearson,  3  Scam 700 

People  V.  Peggy  Royal,  1  Scam 637 

People  V.  Public  Officers,  4  Gilm 6.59 

People  V.  Young,  40  111 677 

Perteet  v.  The  People,  70  111 655 

Phelps  V.  Curtis.  80  111 422 

Phelps  V.  Fiskes,  63  111 638 


Phelps  T.  Funkhouser,  40  111 656,  688 

Phelps  V.  Harding,  87  111 599 

Phillips  V.  Phillips,  1  Bradwell's  App. 

Ct.  R  509 

Pick  V.  Ketchum,  73  111 661 

Pierson  v.  Hendryx,  88  111 672 

Pixley  V.  Boynton.  79  111 695 

Planing  Mill  Lumber  Co.  v.  City  of  Chi- 
cago, 56  111 660 

Plaster  v.  Plaster,  67  111 522 

Pollard  V.  King,  63  111 673 

Powell  V.  Webber,  79  111 591 

Prettyman  v.  Barnard.  37  111 683 

Prince  v.  Cutler.  69  111 186 

Prince  v.  Lamb,  Breese 695 

Propeller  Niagara  v.  Martin,  42  111 658 

Protection  Life  Ins.  Co.  v.  Foote,  79  HI.  672 

Q 

Quinn  V.  Allen,  85  111 611 


Race  v..  Sulivan,  1  Bradweirs  App.  Ct. 

R 591 

Race  V.  Weston,  86  111 317 

Ragar  v.  Tilford,  Breese  (App.) 657 

Reed  v.  Boyd,  84  111 611,  672 

Reed  v.  Curry,  40  111 679,  681 

Reese  v.  City  of  Chicago,  38  111 645 

Resser  v.  Resser,  82  111 524 

Reitz  V.  Coyer,  83  111 581 

Rich  V.  City  of  Chicago,  59  111 660 

Richards  v.  Green,  78  111 647 

Richeson  v.  Ryan,  14  111 675 

Ripley  v.  Morris,  2  Gilm 656 

Rivard  v.  Walker,  40  111 663 

Roberts  v.  Beckwith,  79  111 445 

Roberts  v.  Stigleman,  78  111 153 

Roberts  V.  Trustees  etc.,  32  111 656 

Robinson  v.  Brown,  82  111 672 

Roby  V.  Cossitt,  78  111        99,  326 

Rogers  v.  Powell,  1  Bradwell's  App.  Ct. 

R 581,583,  611 

Ross  V.  Ross,  78  111 522 

Rowand  v.  Carroll,  81  111 478.  672 

Rowley  v.  Hughes,  40  111 663,  664.  679 

Ruckman  v.  Alwood,  40  111.  656;  44  111.  675 
Rutherford  v.  Morris,  77  111 550,  553 


Scammon  v.  Campbell.  75  111 478 

Schirmer  v.  The  People,  33  111. . .   .  663,  679 

Schlumb  V.  Reidersdorf,  28  111 661 

Schnell  v.  Clements,  73  111 611 

Sea  V.  Morehouse,  79  111 535 

Selby  V.  Hutchinson,  5  Gilm 700 

Shackleford  v.  Bailey,  35  111 683 

Sharkey  V.  Miller,  69  111 189 

Shaver  v.  Williams,  87  111 395 

Sheeny.  Hogan,  86  111 395 


TABLE   OF   CASES   CITED. 


761 


Shepley  v.  Spencer,  40  111 664 

Short  V.  Raub,  81  111 374,  672 

Simpson  v.  Ham,  78  111 478 

Simpson  v.  Leach,  8tj  111 478 

Sims  V.  Lyle,  4  Wash.  C.  C.  R 117 

Skiles  V.  CarauthiTs.  88  111 fi83 

Sloo  V.  The  Statu  Bank,  1  Scam 638 

Smith  V.  Crawford.  81  111 4-J8 

Smith  ex  parte.  16  111 657 

Smith  V.  Hickman,  68  111 647 

Smith  V.  Newland.  40  111 663 

Smith  V.  Newton,  84  111 189 

Smith  V.  Trimble.  27  III 664 

Smucker  v.  Larimore,  21  111 674 

Snell  V.  Church  Trustees,  58  111 661 

Snell  V.  Stanley,  63  111 686 

Sontag  V.  Brennen.  75  111 576 

Spear  v.  D'Clercy.  40  111 683 

Spraggins  v.  Houghton,  2  Scam  645 

Stanberry  v.  Moore.  56  111 696 

Stanley  v.  Valentine,  79  111 57 

Steele  V.  Clark,  77  111 570 

Steele  v.  The  People,  40  111. . . .  674,  679,  680 

Stevenson  v.  Manners,  67  111 140 

Stevison  v.  Ernest,  80  111 663 

Stewart  v.  The  People,  3  Scam 638 

St.  Joseph  M.  Co.  v.  Daggett,  84  111 ... .  390 
St.  L.  &  T.  H.  R.R.  Co.  V.  Todd.  40  111.  675 

Stone  V.  Wood,  85  111. 672 

Strawn  V.  O'llara,  86  111 611 

Sutherland  v.  Sutherland,  69  111 478 

Suttler  V.  The  People,  59  111 661 

T 

Taylor  V.  Gilsdorf,  74  111 511 

Taylor  v.  Turner.  87  111 46 

Teal  V.  Russell,  2  Scam 647 

Terry  v.  Eureka  College,  70  111 90,  236 

Theilman  V.  Carr,  75  111 611 

Thomas  v.  Coultas,  76  111 171 

Thomas  v.  Fisher.  71  111 695 

Thomas  v.  University,  71  lU 575 

Thomas  v.  Negus.  2  Gilm 675 

Thomas  v.  Urbana  School  Dist.,  71  111. .  575 
Thompson  v.  County  Com'rs.,  3  Scam.  655 

Thompson  v.  Follansbee,  55  111 638 

Thompson  v.  Hoagland,  65  111 696 

Thompson  v.  White,  64  111 661 

Titcomb  v.  Vantyle,  84  111 189 

Tobey  v.  Foreman,  79  111 314 

T.  P.  &  W.  R'y  Co.  V.  Comes,  40  111. . . .  657 
Tracy  v.  Rogers,  69  111 583 


Truit  V.  Griffin,  61  111 660 

Trustees  of  Schools  v.  Hihler,  86  111. .  409,  695 
Trustees  of  Schools  v.  School  Directors, 

88  111 638,  639 

Turner  v.  Bennett,  70  111 452 

U 

Underwood  v.  Hossack,  40  111 664 

U.  S.  Ex.  Co.  V.  Bedbury,  40  111. . . .  678,  680 

V 

Van  Pelt  v.  Dumford,  58  111 661 

Victor  Scale  Co.  v.  Shurtliff,  81  111 557 

Von  Glahn  v.  Von  Glahn.  40  111 679 

W 

Wadhams  v.  Gay,  73  111 452,  696 

Walker  V.  Abt.,  83  111 647 

Walker  V.  Oliver,  63  III     638 

Wallahan  v.  The  People,  40111.  . .  663,  664 
Walsh  V.  Truesdall.  1  Brudwell's  App. 

Ct.  R 373 

Walton  V.  Westwood.  73  111 99 

Waterman  v.  Raymond.  40  111 679 

Waugh  V.  Robbins.  33  111 663 

Waugh  V.  Suter,  3  Bradweirs  App.  Ct. 

R 638 

Webster  v.  Pierce,  40  111 657,  679 

Welch  V.  Dutton.  79  111 478 

Welch  V.  Johnson,  76  111 695 

Willenborg  V.  Murphy,  40  111 ,...  658 

Williams  v.  Bank  of  111.,  1  Gilm 695 

Williams  v.  La Valle,  64  111 ,,,..  638 

Wilder  v.  House,  40  111 663,  664 

Wilton  V.  Tazewell,  86  111 425 

Winchester  v.  Grosvenor,  48  111 696 

Wing  V.  Carr,  86  111  611 

Wing  V.  Sherrer.  77  111 535 

Winkleman  v.  The  People.  50  111.  637.  639 

705 

White  V.  Russell.  79  111 422 

WHiitman  V.  Fisher.  74  111 76 

Whitney  v.  Stephens.  77  111 539 

Wolbrechtv.  Baumgarten,  26111 696 

Woodside  v.  Woodsidc,  21  HI 638,  639 

W^ork  V.  Hall,  79  111 ...  611 

Wright  V.  Smith.  76  111 638 

Wright  V.  Troutman,  81  III 199 

Y 

Yarzel  v.  Palmer.  88  111  683 

Yoe  V.  McCord,  74  111 550,  553 


INDEX. 


ABATEMENT— 

Pleas  of,  to  jurisdiction  of  the  court 115-120 

Form  of 120 

To  the  person 115 

Form  of  Plea  of  Coverture 120 

Infancy  witJiout  a  prochein  ami 121 

Complainant  an  alien  enemy 121 

ADSTRACTy — {See  Practice  in  Supreme  and  Appellate  Courts.) 
ACCOUNT— 

Form  of  plea  of,  stated 124 

Form  of  bill  for,  between  partners 345 

Form  of  decree  for,  between  partners 848 

ADDRESS  — 

Of  a  bill  in  chancery 41 

Form  of 6& 

ADMINISTRATOR  — 

Form  of  plea,  never  was,  etc ; 121 

May  file  bill  to  enforce  mechanic's  lien 577 

ADULTERY— 

A  bar  to  dower 464 

Ground  for  divorce 491-495 

Circumstantial  evidence  of 492 

Form  of  bill  for,  by  husband 493 

Form  of  bill  for,  etc.,  by  wife,  for  alimony,  etc 494 

Form  of  a  decree  for 514 

Form  of  decree  for,  and  custody  of  children,  etc 515 

AFFIDAVITS— 
Fm'ms  of 
For  publication,  non-residence  of  defendant,  stating  his  place  of 

residence 78 

Same,  stating  that  place  of  residence  is  unknown 78 

Same,  stating  that  defendant  cannot  be  found 78 

Same,  stating  that  defendant  is  concealed,  etc 79 

Of  service  of  copy  of  billand  notice 80 

To  obtain  attachment  for  not  answering 84 

In  support  of  motion  to  set  aside  default 91 

To  an  answer 149 

To  a  bill  of  revivor  on  newly  discovered  matter 262 

To  a  bill  of  interpleader , 285 

To  a  petition  to  perpetuate  testimony BOX 

For  an  injunction  on  bill  for  account  between  partners 345 

To  a  petition  for  partition 435 

Of  commissioners  to  make  partition 444 

To  a  petition  for  dower 469 

Of  commissioners  to  assign  dower 474 

Of  defendant  to  a  demurrer  in  U.  S.  court 110 

AGREED  CASES  — {See  Practice  in  Supreme  and  Appellate  Courts.) 


INDEX.  763 

Agreement  —  Answers  to  a  Bill. 

AGREEMENT  —  {See  Consent.) 

Form  of,  to  submit  a  cause  on  written  arguments 630 

Bills  for  specific  performance  of 317-3^7 

ALIENS  — 

Entitled  to  dower 459 

Form  of  plea,  alien  enemy 121 

ALIMONY— 

When  allowed,  pendente  lite 516-518 

How  applied  for 518 

Form  of  petition  for  518 

Amount  of  allowance 519 

Form  of  order  of  reference  as  to  510 

Form  of  report  of  master  upon 520 

Form,  of  order  confirming 521 

Form  of  interlocutory  decree  for 521 

Permanent  allowance  of 521-523 

Sale  of  real  estate  to  satisfy 522 

Form  of  decree  for 523 

{See  Maintenance.) 

AMENDMENTS  TO  BILLS  — 

Nature  of 165-166 

When  to  be  made 165-167 

When  not  allowed 167 

Form  of  petition  for  leave  to,  after  replication 167 

Form  of  order  granting  leave  to,  after  demurrer 168 

Form  of 169 

Form  of  order  granting  leave  to,  after  a  plea  to  a  part  is  allowed .  624 

After  plea 127 

Answer  to  amended  bill 151 

In  mechanic's  lien  suits 599 

Rules  in  courts  of  equity  of  U.  S.  relating  to 715 

AMENDMENT  OF  ANSWER  — 

When  proper 152 

Rule  of  Supreme  Court  of  the  U.  S.  relating  to 722 

ANCIENT  BILLS  — 

Form  of 66 

Account  of 67 

ANSWERS  TO  A  BILL  — 

Nature  of 132-136 

Exceptions  to 136 

{See  Exceptions  to  an  Answeu.) 

Fraud,  how  alleged ^ 136-137 

Mode  of  answering. 137-138 

Affirmative  relief  not  granted  on 138 

May  be  joint 138-140 

Frame  of 138-140 

Swearing  to 140-141 

Rule  of  Supreme  Court  U.  S.  relating  to 722 

Waiver  of  oath  to 141-142 

Effect  of  sworn  answer  as  evidence 142 

Against  co-defendant 142 

Of  deceased  ancestor 142 

Admissions  in 142-143 

Of  a  corporation 14;3-144 

Of  infants,  and  insane  persons 144-145 

Coupled  with  demurrer 106 

When  a  plea  should  be  supported  by ...  107 


764  INDEX. 

Appearance  —  Bills  in  Chancery. 

ANSWERS  TO  A  BILL  —  Continued. 

Allowing  plea  to  stand  for 130 

Rules  of  Supreme  Court  U.  S.  relating  to 717 

Demurrer  to  not  proper 107 

When  to  be  filed 151 

To  an  amended  bill 151 

Amendment  of .' 152-153 

To  a  supplemental  bill 213 

To  a  bill  of  revivor 234 

To  a  bill  of  discovery 276 

To  a  bill  of  interpleader 287 

To  a  bill  to  perpetuate  testimony 299 

To  a  cross-bill 315 

To  mechanic's  lien  suits 591 

Forms  of. 

Miscellaneous,  of  commencements,  conclusions,  etc 145-148 

General  frame  of 148 

Short 149 

Infants  by  guardian  ad  litem 149 

Statement  in,  claiming  statute  of  frauds 149 

Conclusion,  insisting  on  remedy  at  law 149 

And  disclaimer 154 

Of  owner  to  bill  for  mechanic's  lien 600 

Setting  up  discharge  of  mechanic's  lien 602 

Setting  up  another  mechanic's  lien 602 

To  interrogatories,  etc 627 

Further,  after  exceptions,  etc 628 

And  demurrer 112 

And  plea 1 25 

Affidavit  to 149 

APPEALS  —  {See  Practice  in  Supreme  and  Appellate  Courts.) 
APPELLATE    COURT  —  (See   Practice  in    Supreme  and  Appellats 

Courts.) 
ATTACHMENT  — 

To  compel  an  answer 81 

How  obtained 83 

Form  of  affidavit  to 84 

Form  of  order  for ...     84 

ATTACHMENT  WITH  PROCLAMATION  — 

Nature  of,  etc 84 

ATTORNEYS  — (See  Practice  in  Supreme  and  Appellate  Courts.) 
BILLS  IN  CHANCERY— 

Division  of 39-40 

Constituent  parts  of 40-50 

The  address 41 

Form  of 69 

The  introduction 41-42 

Form  of 69 

The  premises,  or  stating  part 42-53 

Formsof 70-71 

Certainty  required 43-47 

Must  state  the  whole  subject. ...   48 

And  not  too  many  subjects 48 

Matters  in  litigation  not  divisible 48 

Multifariousness 48-51 

Scandal  and  impertinence 51-53 

Scandal 51 

Impertinence        53 


INDEX.  765 

Bills. 

BILLS  IN  CHANCERY— Continued. 

The  confederating  part 52-53 

Form  of 71 

The  charging  part 5S-54 

Form  of 71 

The  jurisdictional  clause 54 

Form  of 72 

The  interrogating  part 55-56 

Form,  of 72 

The  prayer  for  relief 56-58 

Form  of 73 

The  prayer  for  process 58-59 

Forms  of. 73 

Frame  of  bill 59 

Signing  of  bills 59-60 

Swearing  to  bills 60-61 

Parties  to    61-65 

Who  should  be  made 62-63 

How  described 63 

Persons  under  disability 63-64 

Interest  of  64 

Joinder  of 64r-65 

Want  of 65 

Misjoinder  of 65 

Ancient  bills 66-68 

(See  Forms  of  thb  Constitdhnt  Pabts  of  an  Origi- 
NAi,  Bill.) 

Frame  of,  in  courts  of  equity  of  the  U.  S 713 

BILLS  — 
Forms  of. 

An  ancient  bill 66 

Constituent  parts  of 69 

Supplemental,  for  specific  performance 208 

Supplemental,  against  assignee  of  bankrupt 209 

Original  in  the  nature  of  a  supplemental  bill 219 

To  carry  decree  into  execution 223 

Of  revivor,  before  deci'ee 230 

Of  revivor,  after  decree 231 

In  the  nature  of  a  bill  of  revivor 243 

Of  revivor  and  supplement 247 

Of  review,  upon  error  of  law  260 

Of  review,  upon  newly  discovered  matter 261 

Of  discovery 270 

Of  interpleader 284 

To  perpetuate  testimony 297 

Cross-bill  to  a  foreclosure  suit 308 

Cross-bill,  in  nature  of  a  plea  puis  darrein  continuance 310 

For  specific  performance,  vendee  v.  vendor 327 

For  specific  performance,  vendor  v.  vendee 328 

For  specific  performance,  of  a  bond  for  a  deed 330 

For  specific  performance,  of  contract  for  lease 331 

For  a  dissolution  of  copartnership,  etc 342 

For  an  account  of  partnership  dealings,  etc 345 

To  redeem,  by  heirs  of  mortgagor 360 

To  redeem  from  deed,  intended  as  a  mortgage . .  362 

To  redeem  goods  pledged  as  a  security 364 

To  set  aside  decree  of  foreclosure,  to  redeem,  etc 365 

Of  foreclosure,  mortgagee  v.  mortgagor 376 

Of  foreclosure,  assignee  v.  mortgagor 878 


766  INDEX. 

Bills  —  Bills  and  Petitions  to  Perpetuate  Testimony. 

BILLS  —  Continued. 

Of  foreclosure,  mortgagee  v.  executor,  etc 380 

Of  foreclosure,  mortgagee  v.  administrator,  etc 383 

Of  foreclosure,  of  deed  of  trust  383 

For  strict  foreclosure  of  mortgage 380 

Of  creditors,  general 406 

Of  creditor,  in  aid  of  execution,  etc 413 

By  creditor  executrix,  etc 416 

For  partition  between  heirs,  subject  to  dower 429 

For  partition,  etc 431 

For  partition  and  dower 433 

For  divorce,  on  the  ground  of  impotency 489 

For  divorce,  ground  former  marriage,  etc 490 

For  divorce,  charging  adultery,  by  husband 493 

For  divorce,  etc.,  charging  adultery,  by  wife 494 

For  divorce,  charging  desertion 497 

For  divorce,  charging  habitual  drunkenness 499 

For  divorce,  attempting  life  of  the  other 501 

Divorce,  charging  cruelty,  by  husband 503 

Divorce,  etc.,  charging  cruelty,  etc.,  by  wife 504 

Divorce,  etc.,  charging  conviction  of  crime,  etc 507 

For  separate  maintenance 527 

To  quiet  title,  and  cancel  deed 540 

To  quiet  title,  and  set  aside  tax  deed,  etc 541 

To  quiet  title,  and  cancel  contract,  etc 544 

To  set  aside  a  will,  etc 551 

For  ne  exeat  repuUica 558 

To  restrain  wastes,  etc 566 

To  remove  trustees,  etc 571 

For  appointment  of  new  trustees,  etc 573 

For  mechanic's  lien 592 

Cross-bill,  for  mechanic's  lien 604 

BILLS  IN  THE  NATURE  OP  SUPPLEMENTAL  BILLS  — («C6  Sup- 

PLEMENTAIi   BiLLS.) 

BILLS  IN  THE  NATURE  OF  BILLS  OF  REVIVOR  —  {see  Reyivor, 

Bills  of.) 
BILLS  OF  REVIVOR  AND  SUPPLEMENT— (see  Revivor,  Bills  OF.) 
BILLS  OF  DISCOVERY  —  {see  Discovert,  Bills  of.) 
BILLS  OF  REVIVOR  — (see  Revivor,  Bills  of.) 
BILLS  OF  INTERPLEADER  —  {see  Interpleader,  Bills  of.) 
BILLS  OF  REVIEW  — (see  Review,  Bills  of.) 
BILLS  TO  FORECLOSE  —  (see  Foreclosure  of  Mortgages.) 
BILLS  RELATING  TO  PARTNERSHIP  MATTERS  — (see  Partnihb- 

sHip,  Bills  op.) 
BILLS  AND  PETITIONS  TO  PERPETUATE  TESTIMONY  — 

Nature  of  the  proceedings 294 

Frame  of  bill 294^297 

Form  of  hill 297 

Defenses,  and  proceedings 298-300 

Demurrer  to 299 

Answer 299 

Petition  to 300 

In  what  cases  proper 300 

The  petition 300-301 

Form  of  Petition 301 

Affidavit  to 301 


LNDKX.  767 

Bills  to  Redeem  —  Conmiencemeiit  of  a  Suit  in  Cliancerj. 

BILLS  AND  PETITIONS  TO  PERPETUATE  TESTIMONY— Cont'd. 

Commission  to  take  depositions 302 

Docketing 303 

Notice  to  parties  interested 302 

Manner  of  taking  testimony 303 

Deposition  may  be  used  as  evidence 303 

BILLS  TO  REDEEM  — 

Nature  of 350 

Deeds  absolute  on  face  of,  when  deemed  a  mortgage 351-352 

Who  may  redeem 352-353 

Within  what  time  to  be  filed 353-354 

Parties  to 354-357 

Complainants 354-356 

Defendants 356-357 

Terms  of  357-359 

Frame  of  bill 359-360 

Forms  of. 

By  heirs  of  mortgagor  against  mortgagee 360 

From  a  deed,  i/ite/tded  as  a  mortgage 363 

Goods  deposited  as  a  pledge 364 

To  set  aside  decree  of  foreclosure,  and  to  redeem ?65 

Decrees  367-368 

Form  of 368 

BILLS  TO  QUIET  TITLE  — 

Nature  of,  and  when  proper 535-539 

Forms  of  bills. 

To  quiet  title,  and  cancel  a  deed 540 

To  quiet  title,  and  set  aside  tax  deed,  etc 541 

To  quiet  title,  and  set  aside  contract  of  sale 544 

Form  of  decree  to,  and  setting  aside  deed 546 

BONDS  — 

Forms  of. 

For  costs,  by  a  non-resident 38 

By  next  friend  of  infant 38 

For  a  deed,  form  of  bill  for  specific  performance  of 330 

BOOKS  AND  WRITINGS  — 

Production  of 174 

Form  of  petition  for. . .     175 

Form  of  order  directing 176 

BRIEF  AND  ARGUMENT— (iSee  Practice  in  Supreme  and  Appellate 

Courts.) 
CHANGING  WIFE'S  NAME  — 

Allowed  in  divorce  suits 514 

{See  Divorce.) 

CHARGING  PART  — 

Of  a  bill  in  chancery 53 

Form  of 71 

COLLUSION  — 

A  bar  to  divorce .  .  514 

COMMENCEMENT  OF  A  SUIT  IN  CHANCERY— 

By  bill 35 

By  information 35 

Where  commenced 36 

Security  for  costs 37 

Form  of  bonds  for 38 

By  a  non-resident 38 

By  an  infant's  next  friend 38 


768  ,  INDEX. 

Commiesion  of  Rebellion  —  Crime. 

COMMISSION  OF  REBELLION  — 

When  granted,  etc 85 

COMMISSIONERS  — 

To  make  partition 443 

Proceedings  by 443 

Required  to  take  an  oath 443 

Form  of 444 

Duty  of 444 

Report  of  445 

Form  of,  making  partition 445 

Form  of,  that  petition  cannot  he  made 446 

To  assign  dower 474 

Form  of  oath  of 474 

Duty  of 474-476 

Report  of 475 

CONDONATION  — 

Effect  of  in  divorce  suits 508 

CONFEDERATING  PART  OF  BILL  — 

Nature  of,  and  uses 52 

Form  of 71 

CONFESSIONS  — 

Not  to  be  taken  in  divorce  suits 513 

CONTRACT  — (;See  Specific  Pekfokmance.) 

Form  of  bill  to  set  aside 544 

COSTS  — 

When  security  for  required,  etc 37 

Fhrm  of  bonds  for 38 

Motion  for  security  for 96 

In  interpleader  bills 290 

COVERTURE  — 

Form  of  plea  of 120 

Not  proper  in  Illinois 120 

CREDITOR'S  BILL  — 

Nature  of,  and  when  proper 396-398 

On  justice's  judgment 398 

In  United  States  court 389 

What  may  be  reached  by 398-400 

Parties  to 400^02 

Complainants 400-401 

Defendants 401-402 

Priority  and  lien  of 403-404 

Frame  of  bill 404 

Prayer  of 405 

Swearing  to 405 

Form  of,  general 406 

Form  of,  in  aid  of  execution 413 

Form  of,  against  executrix,  etc . . . .- 416 

Form  of  order  appointing  receiver 419 

Form  of  order  of  reference 420 

Form  of  decree  for  payment  of 420 

Form  of  decree  setting  aside  fraudulent  convey an^ie  in  aid  of  exe- 
cution   422 

CRIME  — 

Conviction  of,  ground  for  divorce 506 

Form  of  bill  for  divorce,  on  th/xt  ground 507 


INDEX.  769 

Cross-Bille  —  Decrees  and  Orders. 

CROSS-BILLS  — 

Nature  of 305-307 

Frame  of 307-308 

Form  of,  to  foreclose  prior  mortgage 30& 

Form  of,  in  nature  of  plea  puis  darrein  continuance 310 

When  to  be  filed 312-313 

Leave  to 313 

Process  upon 313 

Defenses  to 314-315 

Demurrer 314 

Pleas 315 

Answer 315 

Proceedings  upon 316 

Form  of,  in  suit  to  enforce  mechanic's  lien 604 

To  be  heard  with  original  bill 193 

CROSS-ERRORS  —  {See  Pkactice  in  Supreme  and  Appellate  Courts.) 

CRUELTY— 

Extreme  and  repeated,  a  ground  for  divorce 502^ 

Form  of  bill  by  husband  dmrging 503 

Form  of  bill  by  wife  charging,  etc 504 

Form  of  decree  for  divorce  on  that  ground 516 

DE  BENE  ESSE  — 

Taking  of  testimony  in  U.  S.  courts 727 

DECREES  AND  ORDERS— 

Nature,  uses  and  kinds  of 195-197 

Interlocutory 195 

Final 196-197 

Setting  aside,  where  parties  are  not  personally  notified 91-  93 

In  dower  suits 472 

Frame  of 198-201 

Constituent  parts 198 

Caption  and  title 198 

The  recitals 198-199 

Ordering  part 199 

Declaratory  part 200 

By  consent 200 

Nunc  pro  tunc  clause 200-201 

Drawing  of 201 

Entitling  in  supplemental  bills,  etc 215 

In  revivor  suits 236 

In  bills  of  interpleader 290-293 

For  specific  performance 333-337 

On  bills  to  redeem 367-369 

In  foreclosure  suits , 389-391 

In  creditor's  suits 419-422 

In  partition  suits,  making  partition 437-439 

Directing  sales  in 448-452 

In  proceedings  for  dower 472-473 

In  suits  for  divorce 512-514 

Alimony 516-523 

In  suits  for  separate  maintenance 529-533 

In  mechanic's  lien  suits 606-607 

Rules  of  Supreme  Court  of  U.  S.  relating  to 731 

Forms  of  orders. 

For  an  attachment  for  not  answering 84 

To  expunge  scandal  and  impertinence 163 

For  leave  to  amend  bill,  after  demurrer,  etc 168 

For  production  of  books  and  papers 17ft 

49 


770  INDEX. 

Decrees  and  Orders. 


DECREES  AND  ORDERS —i^brms  of— Continued. 

Of  reference  to  master  to  take  proofs 188 

Directing  issues  of  fact  to  be  tried  by  a  jury 190 

Caption  of 198 

Recital  of 199 

General 202 

And  of  decree 202 

For  revivor 236 

For  leave  to  file  bill  of  revivor 259 

For  injunction  on  bill  of  interpleader. 289 

Of  reference  as  to  title  of  vendor,  etc '635 

For  an  account  between  vendor  and  vendee 33C 

Appointing  receiver  in  partnership  suits 347 

For  an  account  between  partners 348 

Appointing  receiver  in  creditor's  suits 419 

Of  reference  in  creditor's  suits 420 

Directing  issue  for  jury,  in  divorce  suits 512 

Of  reference  as  to  alimony,  etc 519 

Of  reference  as  to  separate  maintenance,  etc 530 

Directing  issue  for  jury,  to  try  validity  of  will 553 

Of  judge  granting  ne  exeat,  etc 560 

Of  master  granting  ne  exeat 561 

Where  defendant  admits  contempt,  etc 618 

Committing  defendant  for  contempt,  etc 618 

Directing  interrogatories  for  defendant  to  answer 619 

Convicting  defendant  of  contempt,  after  examination 620 

Of  reference  of  second  or  third  answer,  etc 621 

For  sheriff  acting  as  sergeant-at-arms 621 

For  sequestration 622 

Of  reference  as  to  exceptions,  etc 623 

For  further  answer,  etc 623 

For  attachment  on  third  answer,  etc 628 

For  examination  of  defendant  on  interrogatories,  etc 623 

For  leave  to  amend  bill  after  plea,  etc 624 

Of  reference  to  master 624 

Of  reference  of  a  plea  of  former  suit  pending 625 

Directing  plea  to  stand  for  an  answer 625 

Allowing  complainant  to  dismiss  bill 625 

To  pay  money  into  court 625 

For  cause  to  stand  over  to  add  new  parties 626 

For  cause  to  stand  over  to  supply  proofs 626 

Forms  of  decrees. 

Caption,  and  title  of 198 

Recital  of 199 

General 202 

General  of,  or  order 202 

On  bill  of  interpleader 292 

For  specific  performance 336 

For  an  account  between  partners 348 

Of  dissolution  of  partnership,  etc 348 

For  redemption 368 

Of  foreclosure,  pi'o  confesso  and  sale 391 

Of  foreclosure,  on  hearing,  and  for  sale 394 

Of  strict  foreclosure 394 

On  a  general  creditor's  bill 42Q 

Setting  aside  fraudulent  conveyance,  in  aid  of  execution 422 

For  partition 439 

For  partition,  etc 440 

For  partition  and  dower 441 


INDEX.  771 

Deeds  —  Demurrer. 


DECREES  AND  ORDERS  —  Continued. 

Confirming  partition  by  commissioners 447 

For  sale  in  partition  suits 450 

Confirming  sale  in  partition 452 

For  dower,  etc 473 

For  divorce  on  ground  of  adultery 514 

For  divorce  for  adultery,  custody  of  children,  etc 515 

For  divorce  for  cruelty,  etc 516 

For  alimony  pendente  lite,  etc 521 

For  permanent  alimony 523 

For  separate  maintenance 583 

To  quiet  title  and  cancel  deed 546 

Setting  aside  a  will 553 

Allowing  mechanic's  lien,  and  for  sale 607 

Allowing  mechanic's  lien,  reserving  adjustment 608 

Allowing  mechanic's  lien,  adjusting  claims,  etc 608 

Dismissing  bill  at  hearing 262 

DEEDS— (^ee  Bills  to  Quiet  Title.) 

DEEDS  OF  TRUST— 

When  necessary  to  foreclose 382 

Form  of  hill  to 383 

DEFAULTS— 

When  may  be  taken 87 

Effect  of 88-89 

Right  of  defendant  after 90 

Setting  aside 90-  91 

Motion  to 90 

Form  of  affidavit  in  support  of. 91 

In  divorce  suits 513 

In  courts  of  equity  of  the  U.  S 

DEFENSES  TO  A  SUIT— 

Proceedings  by  defendant,  previous  to  putting  in  answer 94 

Exceptions  to  bill  for  scandal  and  impertinence 95-96 

Form  of  exceptions 95-96 

Motion  for  the  production  of  papers,  etc 96 

Motion  for  security  for  costs 96-97 

Different  sorts  of  defenses 97 

{see  Titles,  Demurrer,  Plea,  Answer,  and  Disclaimer.) 

To  a  supplemental  bill 211-214 

To  a  bill  of  revivor 233-234 

To  a  bill  in  the  nature  of  a  bill  of  revivor 245 

To  a  bill  of  review 262-266 

To  bills  of  discovery 272-278 

To  bills  of  interpleader 286-289 

To  bills  and  petitions  to  perpetuate  testimony 298-300 

To  cross-bills 314-315 

To  bill  to  foreclose  mortgages 388-389 

To  bills  for  divorce 508-510 

To  bills  for  separate  maintenance 529 

To  mechanic's  lien  suits 599-606 

DEMURRER  — 

Nature  and  uses  of 98-101 

Where  it  lies 102-1 04 

General 104 

Special 104 

Several  causes  of 104 

Separate 104-105 

Speaking 105 


772  INDEX. 

Depositions  —  Discovery,  Bills  of. 


DEMURRER  —  Continued. 

Ore  tenus 105-106 

Coupled  with  answer 106 

To  plea  or  answer  not  tolerated 107-127 

When  to  be  filed 107 

Hearing  of 107 

Effect  of  sustaining 107-108 

Of  overruling 10& 

To  a  supplemental  bill 211 

To  a  bill  of  revivor 233 

To  a  bill  of  review 264 

To  a  bill  of  discovery 272 

To  a  bill  of  interpleader 286 

To  a  bill  to  perpetuate  testimony 299 

To  a  cross-bill 314 

To  bill  in  U.  S.  court 109-lia 

Rules  of  Supreme  Court  of  U.  S.  relating  to 641 

Forms  of. 

General  frame  of 108 

Short 10& 

For  want  of  equity 110 

For  multifariousness Ill 

For  want  of  parties Ill 

For  want  of  privity Ill 

To  bill  of  discovery,  etc Ill 

That  complainant  shows  no  interest 112 

To  part  of  a  bill 112 

To  part  of  bill,  coupled  with  answer 112 

To  supplemental  bill 212 

To  a  bill  of  review 266 

To  a  bill  of  discovery,  no  interest  shown 274 

To  a  bill  of  discovery,  want  of  privity 274 

To  a  bill  of  interpleader,  want  of  affidavit   287 

To  a  bill  of  interpleader,  showing  no  right  in  defendant 

To  a  bill  of  interpleader,  showing  no  right  in  complainant  . . .   287 

In  the  United  States  Court 109 

Certificate  to  counsel  to 110 

Affidavit  of  defendant  to 110 

DEPOSITIONS  — 

Of  resident  witnesses 176-177 

Of  non-resident  witnesses 177-178 

Notice  of  taking  when  opposite  party  is  non-resident 178 

Of  non-resident  witnesses  on  oral  interrogatories 179-180 

Manner  of  taking,  certifying,  etc 180-182 

Instructions  for  taking 182 

Interpleader  may  be  sworn 182 

In  proceedings  to  perpetuate  testimony 803 

May  be  read  on  motion  to  dissolve  injunction 615 

DESERTION  — 

A  ground  for  divorce 496 

Form  of  hill  on  that  ground 497 

DISCLAIMER  — 

Nature  of 153-154 

Form  of 154 

Form  of  answer,  and 155 

DISCOVERY,  BILLS  OF  — 

Nature  of,  and  when  proper * 267-269 

Frame  of 269-270 


INDEX.  773 

Divorce,  Bills  for. 


DISCOVERY,  BILLS  OF- Continued. 

Form  of 270 

Defenses  to 272 

Demurrer  to 272-274 

Form  of,  where  defendant  has  no  intercut 274 

Formof,  for  want  of  privity 274 

Plea  to 274-275 

Form  of  action  at  law  pending,  etc 275 

Form  of,  that  discovery  would  compel  betrayal  of  confidence 

as  solicitor 276 

Answer 376-277 

Practice  upon,  generally 277 

Form  of  demurrer  to,  defendant  could  be  a  witness HI 

DIVORCE,  BILLS  FOR  — 

Nature  of 483-484 

Causes  for  under  111.  stat 485 

Jurisdiction  of,  and  where  commenced 485 

Complainant  must  be  resident,  etc 486 

Effect  of 486 

On  dower 463 

Natural  impotency  at  time  of  marriage 486-488 

Form  of  hill,  on  that  ground 489 

Having  a  husband  or  wife  living  at  time  of  marriage 490-491 

Form  of  bill,  on  that  ground 490 

Adultery 491-496 

Circumstantial  evidence  of 493 

Frame  of  bill  charging 493 

Form  of  hill  for,  by  husband 493 

Form  of  bill  for,  by  wife,  for  alimony,  etc 494 

Willful  desertion 496-498 

Form  of  bill,  on  that  ground 497 

Habitual  drunkenness 498-501 

Form  of  hill,  on  that  ground,  etc 499 

Attempting  the  life  of  the  other 501-503 

Form  of  bill,  for  that  cause 501 

Extreme  and  repeated  cruelty 502-506 

Form  of  bill,  on  tlmt  ground,  by  husband 503 

Form  of  bill,  on  that  ground,  by  wife,  injunction,  etc 504 

Conviction  of  crime,  etc 506 

Form  of  bill,  on  that  ground 507 

Defenses  to 508 

Condonation 508-510 

Recrimination 510 

Injunctions  in 510 

When  proper 511-512 

Custody  of  children,  pendente  lite 511 

Hearing  and  decree. 513 

Trial  by  jury 513 

Forming  an  issue  for 512 

Form  of  order  directing,  etc 513 

In  cases  of  default 513 

Confessions  of  defendant 513 

Collusion 514 

Proof  of  foreign  marriage 514 

Changing  wife's  name 514 

Forms  of  decrees  for. 

On  the  ground  of  adultery,  changing  wife's  name 514 

On  the  ground  of  adultery  .for  custody  of  children,  etc 515 

On  the  ground  of  cruelty,  upon  verdict,  etc 516 


INDEX. 

Dower,  Proceedings  for. 


DIVORCE,  BILLS  FOR  — Continued. 

Alimony  and  expenses 516 

Pendente  lite 516-517 

Form  of. 

Petition  for 518 

Amount  oi  allowance 519 

Form  of  order  of  reference  as  to 519 

Form  of  report  of  master  as  to  520 

Form  of  order  confirming 521 

Form  of  order  allowing,  etc. . : 521 

Questions  of  guilt  not  investigated 521 

Permanent  allowance  of 521 

Sale  of  real  estate  to  satisfy 522 

Form  of  decree  for 523 

Title  of  property  held  by  one,  equitably  belonging  to  the  other, 

etc .' 523 

Wife  may  prosecute  without  costs,  when 518 

DOWER,  PROCEEDINGS  FOR  — 

Nature  of 453-457 

In  what  property  it  attaches 457-459 

Aliens  entitled  to 459 

In  lands  mortgaged  to  secure  purchase  money 459 

In  surplus  after  sale  on  mortgage 459 

Not  in  estate  created  by  mortgage 460 

How  barred 460 

By  jointure,  etc 460-461 

By  will,  etc 461 

Where  husband  and  wife  die  without  issue 462 

Renunciation  of  will 463 

Form  of 463 

By  divorce,  when,  etc 463 

By  abandonment  and  adultery 464 

Not  by  judgment,  etc 464 

Where  there  is  an  exchange,  etc 464r-465 

Persons  selling  by  order  of  court,  not 465 

Elements  and  incidents  of ' 465 

Transfer  of,  etc 465-466 

Suits  for 466 

Duty  of  heirs  to  assign,  etc 466 

Who  may  file  petition 467 

Where  petition  to  be  filed 467 

Infants  as  petitioners  or  defendants 467 

Guardian  ad  litem  for 467 

Frame  of  petition 467 

Parties  to 467-468 

Unknown  defendants 468- 

Forms  of  petitions 468 

By  widow,  for 468 

Affidavit  to 469 

By  a  husband,  for 469 

By  heirs,  to  have  assigned 470 

Form  of  bill  for,  in  partition  suits 433 

Interest  in  partition  suits 44? 

Process  of  appearance 47J 

Summons 47. 

Unknown  parties . .  47] 

Non-resident  defendants 471 

Service  by  copy  of  petition 472 


INDEX.  775^ 

Drunkenness,  Habitual  —  Executors. 

DOWER,  PROCEEDINGS  FOR  — Continued. 

Setting  aside  decree,  where  defendants  are  not  personally  notified  472 

Interpli'a.ler 472 

Hearing  and  decree 472 

Form  of  decree  for 473 

Commissioners  to  assign 474 

Form  of  oath  of. 474 

Duty  of 474 

Dower  may  be  assigned  in  a  body,  etc 475 

Homestead,  etc 475 

Report  of  commissioners 475 

Commissioners  subject  to  directions  of  court 476 

Allowance  in  lieu  of 47(>-477 

Damages  for  refusal  to  assign 477^78 

Mode  of  ascertaining  value  of 478 

Dr.  Wigglesworth's  table 479 

Table  showing  present  value,  computed  at  5  per  cent 479 

Portsmouth  or  Northampton  tables  at  (5  per  cent 480 

Rule  for  computing 481 

Examples 481 

Miscellaneous  provisions  of  the  statute 481 

Dower  assigned  in  application  to  county  court  for   leave   to 

sell  lands  to  pay  debts 481 

Waste  by  persons  to  whom  dower  is  assigned 482 

DRUNKENNESS,  HABITUAL— 

A  ground  for  divorce 498 

Form  of  bill,  on  that  charge 499 

EQUITY— 

General  principles  of  pleading  of 32-34 

Form  of  demurrer,  for  want  of. 110 

EXCEPTIONS  — 

To  report  of  master  in  chancery 184-186 

Form  of : 185 

To  report  of  commissioners  to  make  partition 448 

To  report  of  sale  iu  partition  suits 451 

EXCEPTIONS  TO  ANSWER  — 

Nature  of 157, 136 

For  insufficiency 158 

In  what  cases  they  lie 158 

How  taken 158-160 

For  scandal  and  impertinence 160 

What  is 160-161 

Form  of,  for  insufficiency 162 

For  scandal  and  impertinence 162 

Form  of  order  to  expunge  scandal,  etc 163 

When  to  be  filed 136 

Rules  of  Supreme  Court  of  U.  S.  relating  to 648 

EXCEPTIONS  TO  A  BILIi  — 

When  they  may  be  taken,  etc 95 

Form  of 95 

EXECUTION  — 

Form  of  Mil  in  aid  of 413 

Form  of  decree  upon 422 

EXECUTORS  — (see  Administrators.) 

EXECUTRIX  — 

Form  of  creditor's  hill  against 416' 


776  INDEX. 

Executrix  —  Forms. 

FEIGNED  ISSUES  — TRIALS  BY  JURIES  — 

Nature  of 188-190 

Form  of  order  directing  an  issue  of  fact  to  be  tried  hy  ajvry 190 

Drawing  up  and  settling 191 

FELONY— 

Conviction  of,  a  ground  for  divorce 506 

Form  of  hill  for  divorce,  on  that  ground 507 

FORECLOSURE  OP  MORTGAGES  — 

General  nature  of 370-371 

When  proper 371-373 

Parties 372 

Complainants 372-373 

Defendants 373-375 

Frame  of  bill 375-376 

Forms  of  bills. 

Mortgagee  against  mortgagor 376 

Assignee  of  mortgagee  against  mortgagor 378 

Mortgagee  against  executor,  etc 380 

Mortgagee  against  administrator,  etc 382 

Trust  deeds  and  sale  mortgages 382 

Form  of  bill  to  foreclose 383 

Strict  foreclosure 384-386 

Parties  to 385 

Frame  of  bill 386 

Form  of  bill 386 

Defenses  to 388-389 

Decree  of 389-391 

Form  of,  pro  confesso 391 

Form  of,  on  hearing 394 

Form,  of,  on  strict  foreclosure 394 

Form  of  cross-bill  by  first  mortgagee 308 

Form  of  bill  to  set  aside  decree  of,  and  to  redeem 365 

FORMER  MARRIAGE  — 

A  ground  for  divorce,  etc 490 

Form  of  bill  for  divorce,  on  that  ground,  etc 490 

FORMER  SUIT  PENDING  — 

Form  of  plea  of ; 122 

FORMS  — 

Bond  for  costs. 

No.  1.  By  a  non-resident  complainant 38 

No.  2.  By  next  friend  of  infant  complainant 38 

Of  ancient  bill. 

No.  3.  Ancient  bill 66 

Bill  in  chancery. 

No.  4.  Constituent  parts  of 69 

Affidavits  for  publication. 

No.  5.  Non-residence  of  defendants,  stating  place  of  residence  . .  78 

No.  6.  Non-residence  of  defendant ;  place  of  residence  not  known,  78 

No.  7.  Defendant  cannot  be  found 78 

No.  8.  Defendant  concealed  within  this  state 79 

Notice. 

No.  9.  To  be  served  with  copy  of  bill  on  defendant 80 

Affid/mit. 

No.  10.  Of  service  of  copy  of  bill  and  notice 80 

No.  11.  To  obtain  attachments,  for  not  answering 84 

Order. 

No.  12.  For  an  attachment  for  not  answering 84 


INDEX.  777 

Forms. 

FORMS  — Continued. 

Affidavit. 

No.  13.  In  support  of  motion  to  set  aside  default 91 

Petition. 

No.  14.  To  set  aside  decree,  when  defendant  was  not  personally 
Notified 91 

Exceptions. 
No.  15.  To  a  bill  for  impertinence  and  scandal 95 

Demurrers. 

No.  16.  Frame  of,  general 108 

No.  17.  Short  form  of . . .' 109 

No.  18.  Certificate  of  counsel  to,  in  U.  S.  court 110 

No.  19.  Affidavit  of  defendant  to,  in  U.  S.  court 110 

No.  20.  For  want  of  equity 110 

No.  21.  For  multifariousness Ill 

No.  22.  For  want  of  parties Ill 

No.  23.  For  want  of  privity Ill 

No.  24.  To  bill  of  discovery,  when  defendant  may  be  examined 
as  a  witness Ill 

Demurrers. 

No.  25.  To  a  bill,  complainant  has  no  interest 112 

No.  26.  To  part  of  a  bill 112 

No.  27.  To  part  of  a  bill,  with  answer  as  to  residue 112 

Pleas. 

No.  28.  Commencement  and  conclusion  of,  etc 119 

No.  29.  Commencement  and  conclusion  of  part  of  bill 119 

N(3.  30.  In  abatement  to  jurisdiction  of  the  court. . . ., 120 

No.  80a.  Of  coverture  of  complainant 120 

No.  31.  Of  infancy  without  a  prochein,  ami 121 

No.  32.  That  defendant  never  was  administrator,  etc 121 

No.  33.  That  complainant  is  an  alien  enemy 121 

No.  34.  Want  of  proper  parties 123 

No.  35.  Former  suit  pending 122 

No.  36.  Statute  of  limitations 123 

No.  37.  Release,  supported  by  answer 123 

No.  38.  Stated  account 124 

No.  39.  To  a  part  of  bill,  answer  to  residue 125 

A7iswers. 

No.  40.  Title  of,  by  one  defendant 145 

No.  41.  Title  of,  joint  and  several 145 

No.  42.  Title  of,  by  one  of  several 145 

No.  43.  Title  of,  to  amended  bill 146 

No.  44.  Title  of,  where  exceptions  were  taken  and  bill  amended.   146 

No.  45.  Title  of,  to  supplemental  bill 146 

No.  46.  Title  of,  amended 146 

No.  47.  Title  of,  by  guardian  ad  litem 146 

No.  48.  Introduction  of,  by  one  defendant 146 

No.  49.  Introduction  to,  of  several  defendants 146 

No.  50.  Where  defendant  admits  a  statement 147 

No.  51.  Where  defendant  admits  statement  of   written   instru- 
ment     147 

No.  52.  Qualified  admission  in _.  .   147 

No.  53.  Where  defendant  is  ignorant  of  statements,  etc 147 

No.  54.  Statements  in  joint  answer,  etc 148 

No.  55.  Where  one  of  two  deny  allegations 148 

No.  56.  Where  several  are  ignorant  of  allegations 148 

No.  57.  General  frame  of 148 

No.  58.  Affidavit  to •. .  .   149 

No.  59.  Short  form  of 149 


778  INDEX. 

Forms. 

FORMS  —  Answers —  Continued. 

No.  60.  Of  infants  by  guardian  ad  litem 149 

No.  61.  Statement  claiming  statute  of  frauds 149 

No.  62.  Conclusion  of,  insisting  that  there  is  a  remedy  at  law. . .   149 

Disclaimer. 

No.  63.  General 154 

No.  64.  Answer  and 155 

Exceptions  to  ansicer. 

No.  65.  For  insufficiency 162 

No.  66.  For  scandal  and  impertinence 163 

Order. 
No.  67.  To  expunge  scandal  and  impertinence  from  an  answer. .   163 

Petition. 
No.  68.  For  leave  to  amend  bill  after  replication 167 

Order. 
No.  69.  For  leave  to  amend  bill  after  demurrer,  etc 168 

Amendment. 
No.  70.  To  bill 169 

Replication. 

No.  71.  General 172 

Petition. 

No.  72.  For  production  of  papers,  etc 175 

Orders. 

No.  73.  For  production  of  books  and  papers 176 

No.  74.  Of  reference  to  master  to  take  proofs 183 

Report. 

No.  75.  Masters,  of  testimony 184 

Objections. 
No.  76.  To  master's  report  of  testimony 185 

Exceptions. 

No.  77.  To  master's  report  of  testimony 185 

Order. 

No.  78.  Directing  an  issue  of  fact  to  be  tried  by  a  jury 190 

Decrees  and  orders. 

No.  79.  Caption,  and  title  of 198 

No.  80.  Recital  of,  on  order 199 

No.  81.  General  form  of  order 202 

No.  82.  General,  of  a  decree 202 

No.  83.  General,  of  order  or  decree 202 

Bills. 

No.  84.  Supplemental  for  specific  performance,  etc 208 

No.  85.  Supplemental  against  assignee  of  bankrupt 209 

Petition. 

No.  86.  For  leave  to  file  supplemental  bill 210 

Demurrer. 
No.  87.  To  supplemental  bill 213 

Plea. 
No.  88.  To  a  supplemental  bill 213 

BUI. 

No.  89.  Original,  in  the  nature  of  a  supplemental  bill 219 

No.  90.  To  carry  decree  into  execution 223 

No.  91.  Of  revivor  before  decree 230 

No.  92.  Of  revivor  after  decree 231 

Order. 
No.  93.  For  revivor 23ft 

BUI. 

No.  94.  In  the  nature  of  a  bill  of  revivor 24$ 

No.  95.  Of  revivor  and  supplement 247 


INDEX.  779 

Forms. 

FORMS  — Continued. 

Petition. 

No.    i)f).  For  leave  to  file  a  bill  of  review  for  errors  of  law 257 

No.    97.  For  leave  to  file  bill  of  review  upon  newly  discovered 

evidence 258 

Order. 
No.    98.  For  leave  to  file  bill  of  review 259 

Bill. 

No.    99.  Of  review  upon  error  of  law 260 

No.  100.  Of  review  on  newly  discovered  matter 261 

No.  101.  Affidavit  to,  on  newly  discovered  matter 262 

Plea. 

No.  102.  To  a  bill  of  review 265 

Demurrer. 

No.  103.  To  a  bill  of  review 266 

Bill. 

No.  104.  Of  discovery,  etc 270 

Demurrer. 

No.  105.  To  bill  of  discovery,  where  no  interest  is  shown 274 

No.  106.  To  bill  of  discovery,  for  want  of  privity 274 

Plea. 

No.  107.  To  bill  of  discovery,  that  action  at  law  is  pending 275 

No.  108.  To  bill  of  discovery,  that  it  would  compel  betrayal  of 

confidence  as  solicitor 276 

Bill. 

No.  109.  Of  interpleader 284 

No.  110.  Affidavit  to,  of  interpleader 285 

Demurrer. 

No.  111.  To  bill  of  intei-pleader,  for  want  of  affidavit 287 

No.  112.  To  bill  of  interpleader,  not  showing  right  in  defendant.  287 
No.  113.  To   bill   of   interpleader,  not    showing    right    in    com- 
plainant    287 

Order. 

No.  114.  For  injunction  on  bill  of  interpleader 289 

Decree. 

No.  115.  Interlocutory  on  a  bill  of  interpleader,  etc 292 

Bill. 

No.  116.  To  perpetuate  testimony 297 

Petition. 

No.  117.  To  perpetuate  testimony 301 

No.  118.  Affidavit  to 301 

Cross-bill. 

No.  119.  To  a  foreclosure  suit 308 

No.  120.  In  nature  of  a  plea  pxiis  darrein  continuance 310 

Bill. 

No.  121.  For  specific  performance,  vendee  v.  vendor 327 

No.  122.  For  specific  performance,  vendor  v.  vendee 328 

No.  123.  For  specific  performance,  of  bond  for  a  deed 330 

No.  124.  For  specific  performance,  of  contract  for  lease 331 

Decrees  and  orders. 

No.  125.  Of  reference  as  to  title  of  vendor,  etc 335 

No.  126.  For  an  account  between  vendor  and  vendee 336 

No.  127.  Final,  for  specific  performance 386 

Billi. 

No.  128.  For  a  dissolution  of  a  partnership,  etc 342 

No.  129.  Affidavit  to,  for  an  injunction 345 

No.  130.  For  an  account  of  partnership  dealings,  etc 345 

Decrees  and  orders. 

No.  131.  Appointing  a  receiver  in  suit  between  partners 347 


780  INDEX. 

Forms. 

FORMS  —  Decrees  and  orders  —  Continued. 

No.  132.  For  an  account  of  partnership  dealings 348 

No.  133.  Final,  for  dissolution  of  partnership,  etc ,^8 

Bills. 

No.  134.  By  heirs  of  mortgagor  to  redeem 360 

No.  135.  To  redeem  from  deed,  intended  as  a  mortgage 362 

No.  136.  To  redeem  goods  pledged  as  security 364 

No.  137.  To  set  aside  decree  of  foreclosure,  and  to  redeem 365 

No.  138.  For  redemption 368 

Bills. 

No.  139.  For  foreclosure  of  mortgage,  mortgagee  v.  mortgagor.  .  376 

No.  140.  For  foreclosure,  by  assignee  v.  mortgagor 378 

No.  141.  For  foreclosure,  mortgagee  v.  executor,  etc 380 

No.  142.  For  foreclosure,  mortgagee  v.  administrator,  etc 382 

No.  143.  For  foreclosure  of  deed  of  trust,  etc 383 

No.  144.  For  strict  foreclosure 386 

Decrees. 

No.  145.  Of  foreclosure  and  sale,  pro  confesso 391 

No.  146.  Of  foreclosure  and  sale,  on  a  hearing 394 

No.  147.  Of  strict  foreclosure 394 

Bills. 

No.  148.  Of  creditor,  general  . . . .' 406 

No.  149.  In  aid  of  execution,  to  remove  fraudulent  conveyance. .  413 

No.  150.  By  creditor  against  executrix,  etc 416 

Orders  and  decrees. 

No.  151.  Appointing  receiver  in  creditor's  suit 419 

No.  152.  Referring  creditor's  bill  to  master,  etc 420 

No.  153.  That  complainant's  debt  in  creditor's  suit  be  paid,  etc.  420 

No.  154.  Setting  aside  fraudulent  conveyance,  in  aid  of  execution  422 

Bills. 

No.  155.  For  partition  between  heirs,  subject  to  dower 429 

No.  156.  For  partition 431 

No.  157.  For  partition  and  dower 433 

Petition. 

No.  158.  For  partition 435 

Decrees. 

No.  159.  For  partition 439 

No.  160.  For  partition,  etc 440 

No.  161.  For  partition  and  dower 441 

Affidavit. 

No.  162.  Of  commissions  to  make  partition 444 

Report. 

No.  163.  Of  commissioners,  making  partition,  etc 445 

No.  164.  Of  commissioners,  that  partition  cannot  be  made,  etc. .  446 

Decree. 

No.  165.  Confirming  report  of  commissioner  making  partition.. .  447 

No.  166.  For  sale,  in  partition  suit 450 

No.  167.  Confirming  sale,  in  partition  suit 453 

Petitions. 

No.  168.  For  dower,  by  widow 468 

No.  169.  Affidavit  to  partition  for  dower 469 

No.  170.  For  dower,  by  husband 469 

No.  171.  To  have  dower  assigned,  by  heirs,  etc 470 

Decree. 

No.  172.  For  dower,  appointing  commissioners,  etc 473 

Affidavit. 

No.  173.  Of  commissioners  to  assign  dower 474 


INDEX.  781 

Forms. 

FORMS  — Continued, 

Bills. 

No.  174.  For  divorce,  on  the  ground  of  impotency 489 

No.  175.  For  divorce,  on  the  ground  of  former  marriage,  etc. . .  .  490 

No.  176.  For  divorce,  charging  adultery,  by  husband 493 

No.  177.  For  divorce,  etc.,  charging  adultery,  by  wife 494 

No.  178.  For  divorce,  charging  desertion 497 

No.  179.  For  divorce,  etc.,  charging  drunkenness 499 

No.  180.  For  divorce,  for  attempting  life  of  the  other 501 

No.  181.  For  divorce,  charging  cruelty,  etc.,  by  husband 503 

No.  182.  For  divorce,  etc.,  charging  cruelty,  by  wife 504 

No.  183.  For  divorce,  etc.,  charging  conviction  of  crime,  etc 507 

Order. 
No.  184.  Directing  issues  for  jury,  in  divorce  suit 512 

Decree. 

No.  185.  For  divorce,  etc.,  on  the  ground  of  adultery,  etc 514 

No.  186.  For  divorce,  etc.,  on  the  ground  of  adultery,  custody  of 

children,  etc 516 

No.  187.  For  divorce,  on  the  ground  of  cruelty,  etc.,  upon  verdict 

of  jury 516 

Petition. 
No.  188.  For  alimony  pendente  lite,  etc ...  518 

Order. 

No.  189.  Of  reference  as  to  alimony,  etc 519 

Beport. 

No.  190.  Of  master  as  to  allowance  of  alimony 520 

Order  and  decree. 

No.  191.  Confirming  master's  report  as  to  alimony 521 

No.  192.  Interlocutory,  for  alimony,  etc.,  pendente  lite 521 

No.  193.  For  permanent  alimony 523 

Bill. 

No.  194.  For  separate  maintenance 527 

Order. 
No.  195.  Of  reference   to  master,  as   to   separate   maintenance, 

allowance,  etc 530 

Report. 

No.  196.  Of  master,  as  to  separate  maintenance,  etc 530 

Decree. 

No.  197.  For  separate  maintenance,  etc 533 

Bills. 

No.  198.  To  quiet  title,  and  to  cancel  deed 540 

No.  199.  To  quiet  title,  and  to  set  aside  tax  deed 541 

No.  200.  To  quiet  title,  and  to  set  aside  contract,  etc 544 

Decree. 

No.  201.  To  quiet  title,  and  to  cancel  deed 546 

Bill. 

No.  202.  By  heirs  at  law  to  set  aside  a  will 551 

Orders  and  decrees. 
No.  203.  Directing  issue  of  fact  for  a  jury  to  try  validity  of  a 

will 553 

No.  204.  Setting  aside  a  will 553 

Bill. 

No.  205.  For  ne  exeat  republica 558 

No.  206.  Affidavit  to 559 

Order. 

No.  207.  Of  judge  granting  a  ne  exeat,  etc 560 

No.  208.  Of  master  granting  ne  exeat,  etc 561 

BiOs. 
No.  209.  By  landlord  against  tenant  to  restrain  waste 566 


782  INDEX. 

Forms. 

FORMS  —  Bills  —  Continued. 

No.  210.  To  remove  trustee,  etc 571 

No.  211.  For  appointment  of  new  trustee,  etc 573 

No.  213.  For  a  mechanic's  lien  on  written  contract 592 

Petitions. 

No.  213.  For  mechanic's  lien  on  verbal  contract .' 594 

No.  214.  For  mechanic's  lien  on  implied  contract 596 

Ansiccvs. 

No.  215.  Of  owner  defendant  to  a  bill  or  petition  for  mechanic's 

lien 600 

No.  216.  Setting  up  a  discharge  of  mechanic's  lien 602 

No.  217.  Setting  up  another  lien  in  mechanic's  lieu  suit 602 

Qross-hill. 

No.  218.  By  a  defendant  to  mechanic's  lien  suit 604 

Decrees. 

No.  219.  Allowing  mechanic's  lien,  and  for  sale 607 

No.  220.  Allowing  mechanic's  lien,  reserving  adjustment,  etc. . .  608 
No.  221.  Allowing   mechanic's   lien,   and    adjusting    conflicting 

claims 608 

Suggestion. 

No.  222.  Of  damages  on  dissolution  of  injunction 617 

Orders. 
No.  223.  Where  defendant  appears,  or  is  brought  into  court  by 
attachment  and  admits  his  contempt,  that  he  put  in 

answer,  etc 618 

No.  224.  For  commitment  of  defendant  for  disobeying  order  to 

put  in  answer 618 

No.  225.  In  case  of  contempt  for  not  answering,  where  defend- 
ant denies  his  contempt,  directing  interrogatories. . .  .  619 
No.  226.  Convicting  defendant  of  contempt  after  his  examina- 
tion on  interrogatories 620 

No.  227.  To  refer  second  or  third  answer  on  old  exceptions 621 

No.  228.  For  sheriff  acting  as  sergeant-at-arms 621 

No.  229.  For  sequestration 622 

No.  230.  Of  reference  where  defendant  does  not  submit  to  an- 
swer exceptions 622 

No.  231.  For  further  answer  after  report  of  master 623 

No.  232.  For  attachment  on  third  answer  being  held  insufficient  623 
No.  233.  For  examination  of  defendant  on  interrogatories  on  third 

answer  being  held  insufficient 623 

No.  234.  For  leave  to  amend  bill  after  a  plea  to  part  is  allowed..  624 

No.  235.  Of  reference  to  master 624 

No.  236.  Of  reference  of  a  plea  of  former  suit  pending 625 

No.  237.  Directing  plea  to  stand  for  an  answer 625 

No.  238.  Allowing  complainant  to  dismiss  his  bill 625 

No.  239.  To  pay  money  into  court 625 

Decree. 

No.  240.  Final,  dismissing  bill  at  hearing 626 

Order. 

No.  241.  For  cause  to  stand  over,  to  add  new  parties 626 

No.  242.  For  cause  to  stand  over,  to  supply  proof 626 

Interrogatories. 

No.  243.  For  examination  of  a  party  in  contempt,  etc 627 

Answer. 

No.  244.  To  interrogatories  for  examination  of  a  party  in  con- 
tempt, etc 627 

Bepoi't 

No.  345.  Of  master  upon  exceptions  to  answer,  etc 628 


INDEX.  783 

Forms  of  Constituent  Parts  of  an  Original  Bill  —  Injunctions. 

FORMS  — Continued. 

No.  246.     Answer,  further,  after  exceptions,  etc 628 

No.  247.     Report  of  master  as  to  defendant's  examination 629 

No.  248.     Exceptions  to  report  on  exceptions  to  answer    629 

No.  249.     Agreement  to  submit  on  written  arguments 630 

No.  250.     Abstrdct  of  pleadings  and  evidence 630 

No.  251.     Brief  and  Points  to  be  used  on  the  hearing 631 

No.  252.     Prcecipe  for  a  writ  of  error 649 

No.  253,     Prcecipe  for  scire-facias  to  hear  errors 650 

No.  254.     Praecipe  for  record  in  common  law  case 662 

No.  255.     Praecipe  for  record  in  chancery  case 663 

No.  256.     Assignment  of  errors 672 

No.  257.     Joinder  in  error 674 

No.  258.     Plea  of  release  of  errors 676 

No.  259.     Suggestion  of  diminution  of  record 680 

GENERAL  PRINCIPLES  UF  EQUITY  PLEADING. 

Nature  of,  etc 32-34 

GUARDIAN  AD  LITEM  — 

Answer  by 144 

Form  of 150 

Rules  of  Supreme  Court  of  U.  S.  relating  to 

HABITUAL  DRUNKENNESS  — (see  Deunkenness  — Divorce.) 

HEARING  — 

Course  of  proceeding 191-193 

Of  a  case  out  of  its  order 193 

Original  and  cross-bill  heard  together 193 

Effect  of  former  orders  on 194 

Of  demurrer ...   107 

Of  supplemental  bill 215 

Of  bill  of  revivor 237 

Of  bills  of  interpleader 290 

Of  divorce  suits 472-512 

IDIOTS,  LUNATICS  — 

Commencement  of  suits  by 38 

.IMPERTINENCE  — 

Nature  of 52,  160 

Form  of  exceptions  to  answer  for '. 162 

Form  of  order  expunging  from  answer  for 163 

IMPOTENCY— 

At  time  of  marriage  a  ground  for  divorce 486,  488 

Form  of  bill  for  divorce  on  that  ground 489 

INFANTS  — 

Bond  for  cost  on  commencement  of  suit  by 38 

Answer  of  by  guardian  ad  litem, 144 

Form  of  answer  by  guardian  ad  litem 150 

INFANCY— 

Form  of  plea  of,  without  a  prochein  ami 121 

INFORMATION  — 

Commencement  of  suit  by 35 

INJUNCTIONS  — 

Statute  of  Illinois  relating  to 612-617 

J  udges  authorized  to  grant 612 

Master  in  chancery  may  grant  in  absence  of  judge 613 

Notice  of  application  for 613 

To  stay  judgments  where  had 612 


784  INDEX. 

Insufficiency  —  Interrogatory. 

INJUNCTIONS  —  Continued. 

Shall  operate  as  a  release  of  errors 612 

Judgments  before  J.  P 613 

As  to  part  of  a  judgment 613 

Complainant  to  give  bond 613 

Approval  of 613 

To  be  filed  before  writ  issues 614 

Assessment  of  damages  on  dissolution 614 

Form  of  suggestion  of 617 

Violation  of,  contempt 614 

Motion  to  dissolve 614r-615 

In  vacation 614 

For  want  of  equity 615 

AflBdavits  upon 615 

Continuance  of 615 

Depositions  on  hearing  of 615 

Same  may  be  read  on  final  hearing 616 

Effect  of  an  appeal  on 616 

Further  bond  on  continuance 616 

When  granted  on  Sunday 616 

Form  of  frayer  for  in  a  hill 73 

Where  bill  of  interpleader  is  filed 288 

Form  of  order  for  on  interpleader  hill 289 

In  divorce  suits 510-511 

In  suits  for  separate  maintenance 527 

INSUFFICIENCY— 

Exceptions  to  answer  for 158 

Form  of 1 62 

INTERLOCUTORY—  {see  Decrees,  etc.) 

INTERPLEADER  — 

In  partition  suits 437 

In  suits  for  dower 472 

INTERPLEADER,  BILL  OF— 

Nature  of,  and  when  proper 279-282 

Form  of  hill 283 

Affidavit  of  non-collusion 283 

Form  of  hill 284 

Form  of  affidavit  to  he  annexed 285 

Defenses  to 286 

Demurrer 286 

Form  of,  for  want  of  affidavit  of  non-collusion 287 

Form  of,  not  showing  any  claim  in  defendant 287 

Form  of,  not  showing  any  right  in  complainant 287 

Answer 287 

Form  of  order  for  injunction  upon 289 

Taking  bill  as  confessed 289 

Hearing  and  decree 290-291 

Costs  upon 291 

Form  of  interlocutory  decree  directing  a  reference 292 

INTERPRETER  — 

May  be  sworn  in  taking  depo^tions 182 

INTERROGATING  PART  OF  A  BILL— 

Nature  of,  etc 55 

Form  of 72 

Rules  of  Supreme  Court  of  U.  S.  relating  to 718-719 

INTERROGATORY— 

Form  of  last,  in  taking  testimony  for  U.  8.  court 727 


INDEX.  785 

Introduction  —  Mechanic's  Lien,  Proceedings  to  Enforce. 

INTRODUCTION  — 

Of  a  bill  in  chancery 41 

Form  of. 69 

ISSUES  TO  BE  TRIED  BY  JURIES  — 

Form  of  order  directing 190 

In  divorce  cases 512 

Form  of  order  directing 512 

To  try  validity  of  will 553 

Form  of  order  directing 553 

JOINDER  OF  PARTIES  — 

Nature  of ,  etc 64-65 

Misjoinder  of 65 

JURISDICTION  — 

Plea  to 115 

Form  of. 120 

In  divorce  suits 485 

JURISDICTIONAL  CLAUSE  — 

In  a  bill  in  chancery 54 

Form  of 72 

JURY- 

Trial  of  issues  of  fact  by 188-191 

{See  Feigned  Issxies  —  Trial  bt  Jury,  etc.) 

Trial  by,  in  divorce  suits 512 

In  suits  testing  validity  of  a  will 553 

LANDLORD  AND  TENANT  — 

Form  of  hill  by  landlord  to  restrain  waste,  etc.. '. 566 

LIENS  —  {see  Mechanic's  Lien.) 

Priority  of,  in  creditors'  bills 403 

LIMITATIONS  — 

Foi'm  of  plea  of  statute  of. 123 

Of  mechanic's  lien 581 

Of  sub-contractor's  lien 590 

LOST  INSTRUMENT  — 

Specific  performance  of  contract,  lost 823 

MAINTENANCE,  SEPARATE  — 

When  granted 525-527 

Grounds  for 525-526 

Proceedings  to  obtain 527 

Where  commenced 527 

The  bill 527 

Injunction,  when  allowed 527 

Form  of  bill  for 527 

Defenses  to , 529 

Practice  in,  and  decrees 529 

Reference  to  master 529 

Form  of  order  of. 630 

Form  ofreportof 530 

Amount  of  allowance 531-638 

{See  Alimony.) 

Modification  of 683 

Form  ofdecreefor 633 

MECHANIC'S  LIEN,  PROCEEDINGS  TO  ENFORCE  — 

Nature  of 575 

Where  a  lien  is  given 676-579 

Suits  by  administrators,  etc 577 

Estate  to  which  it  attaches 577 

50 


786  INDEX. 

Mechanic's  Lien,  Proceedings  to  Enforce. 

MECHANIC'S  LIEN,  PROCEEDINGS  TO  ENFORCE  — Continued. 

Extent  of  lien 577-579 

Contract  on  which  it  is  founded 579-580 

Implied  contracts 579-580 

Where  owner  fails  to  comply  with  contract 580 

Materials  furnished  contractor 580 

Discharge  of 580-581 

Limitations  of 581 

As  against  the  owner 581 

As  against  creditors,  etc 581-582 

Incumbrances,  and  other  liens 582 

Rule  for  adjusting 582-583 

Conflicting  claims 583 

Where  claims  are  not  due 584 

Parties  may  contest  each  other's  rights 584 

Fraudulent  incumbrances,  etc 584 

Delay  in  one  case  not  to  delay  others 584 

■Sub-contractor's  lien 585 

Notice  to  be  given  owner 586 

Form  of 586 

Copy  of  contract  to  be  served 586 

Notice,  etc.,  to  be  filed  with  circuit  clerk,  etc 586 

Owner  may  retain  money  to  pay,  etc 587 

Statement   of  persons   employed,  sub-contractors,  etc.,  to  be 

furnished  owner 587 

When  it  may  be  enforced 587 

Judgments  before  justice  of  the  peace 588 

Owner  may  file  bill,  etc 588 

Proving  claims  under 588 

Contractor  may  give  bond,  etc 589 

Where  contractor  fails  to  complete  contract 589 

Limitations  of 590 

Bills  and  petitions 590-592 

Parties  to 591 

Forms  of. 

Bill  for,  on  written  contract 592 

Petition  for,  on  verbal  contract 594 

Petition  for,  on  implied  contract 596 

Proceedings  upon 598 

Summons 598 

Notice  by  publication 598 

Docketing  case  on  chancery  side 598 

Amendments 599 

Answers 599 

Forms  of. 

By  owner 600 

Setting  up  discharge  of  lien 602 

Setting  up  another  lien 602 

Cross-bill 604 

Form  of .604 

Decrees,  etc.,  and  sales I  606 

Where  a  part  of  the  premises  can  be  sold 606 

Sales,  how  made 606 

Execution  allowed  for  balance 606-607 

Forms  of  decrees. 

Allowing  lien,  and  for  sale  of  premises 607 

Allowing  lien,  where  other  proceedings  are  pending,  etc 608 

Allowing  lien,  where  there  are  several  liens,  and  a  mortgage 

to  he  adjusted 608 

CostB 611 


,  INDEX.  787 

Misjoinder  —  Parties. 


MISJOINDER  — 

Of  parties  to  a  bill 65 

MORTGAGES  —  (see  Foreclosuue  of  Moutgages,  Redemption,  etc.) 
MULTIFARIOUSNESS  — 

Nature  of,  and  what  is 48-51 

Form  of  demurrer,  on  that  ground Ill 

NE  EXEAT  — 

Nature  of,  and  wlien  proper 555-557 

Form  of  bill  for 558 

Affidavit  to 559 

How  obtained,  etc 559 

By  whom  granted 559 

Bonds  to  be  given,  etc 559 

Order  directing  clerk  to  issue  writ 560 

Form  of,  by  a  judge 560 

Form,  of,  by  master  in  cJutncery 561 

Proceedings  upon 561 

The  writ 561 

Defendant's  bond 561 

Surety  may  surrender  principal 561 

Proceedings  in  court 562 

Quashing  writ,  etc 563 

NOTICE  —  (see  Depositions,  Publication,  etc.) 

NORTHAMPTON.  ETC.,  TABLES  — (see  Portsmouth  or  Northamp- 
ton Taules.) 
NUNC  PRO  TUNC  — 

Decrees,  clause  in 200 

OATH  — 

Waiver  of,  to  an  answer 141 

Of  commissioners  to  make  partitions 443 

Form  of 444 

Of  commissioners  to  assign  dowei 474 

Form  of 474 

(See  Affidavits.) 
OBJECTIONS  — 

To  master's  report 183-186 

Form,  of 185 

ORAL  TESTIMONY- 

To  be  heard  on  a  hearing 186 

ORDERS  —  (see  Decrees  and  Orders.) 

PAROL  CONTRACTS— 

May  be  specifically  performed 324 

PARTIES  — 

To  bills  generally 61-65 

Who  should  be  made 62-63 

How  described 63 

Persons  under  disability 63-64 

Form,  of  demurrer  for  want  of. Ill 

Form  of  plea  of  want  of. 122 

To  a  supplemental  bill 205 

To  bills  in  nature  of  bills  of  revivor 242 

To  bills  of  review 254-255 

To  bills  for  specific  performance 325-326 

To  bills  to  redeem 254-257 

Complainants 254r-256 

Defendants 256-257 


788  INDEX. 

Partition  Suits. 


PAETIES  —  Continued. 

To  bills  to  foreclose  mortgages 372-375 

Complainants 372-373 

Defendants 373-375 

To  bill  of  strict  foreclosure 385 

To  a  creditor's  bill 400-402 

Complainants 400-401 

Defendants 401-403 

To  partition  suits 426-428 

Complainants  or  petitioners 426-427 

Defendants 427-428 

Unknown  parties  in  partition  suits 428-436 

Process  against 43f> 

To  suits  for  dower 467-468 

Unknown  defendants  in  dower  suits 468,  471 

In  proceedings  to  enforce  mechanic's  lien 591-592 

Unknown  defendants 81 

How  made  parties 81 

Publication  as  to 81 

Rules  of  Supreme  Court  of  U.  S.  relating  to  nominal  parties. . . .   721 
PARTITION  SUITS  — 

Nature  of,  and  how  instituted 423^26 

Illinois  statute 425^26 

Parties  to 426-428 

Complainants  or  petitioners 426-427 

Defendants 427-428 

Unknown 428 

Bill  or  petition 428 

Frame  of 428 

Forms  of. 

Between  heirs,  subject  to  dower 428 

Bill  for 431 

Bill  for  partition  and  dotoer 433 

Petition  for  partition 435 

Affidavit  to 435 

Process  of  appearance  in 436 

Summons 436 

Unknown  defendants,  notice  to 436 

Absent  defendants,  notice  to 436 

Service  by  copy 436 

Interpleader 437 

Liens  on  snares  of  part  owner 437 

Decrees  for  partition 437-439 

Appointment  of  commissioners 438 

Allotment  of  dower  and  homestead 438 

Costs  apportioned 439 

Forms  of. 

Decrees  for  partition 439-440 

Decree  for  partition  and  dower / 441 

Proceedings  by  commissioners 443 

Required  to  take  an  oath 443 

Form  of  oath 444 

Duty  of  commissioners 444 

Report  of 445 

Form  of,  makiny  partition 445 

Form  of,  that  premises  not  devisable 446 

Form  of  decree  confirming 447 

Exceptions  to  report  of  commissioners 448 

Decree  of  sale 448-44& 


INDEX.  789 

Partnership  Matters,  Bills  Relating  to  —  Pleas. 

PARTITION  SUITS— Continued. 

Dower  interest  provided  for 449 

Interest  of  unknown  owners 449-^0 

Form,  of 450 

Exceptions  to  report  of  sale 451 

Confirmation  of  sale 451 

Form  of  decree  confirming  sale 452 

PARTNERSHIP  MATTERS,  BILLS  RELATING  TO  — 

Where  a  dissolution  will  be  decreed 338-340 

Account  betwecni  partners 340-341 

Appointment  of  a  receiver 341-342 

When  appointed 343 

Formes  of  hills. 

For  a  dissolution,  and  for  injunction 342 

Affidavit  to,  to  obtain  injunction 345 

For  an  account,  and  for  injunction 345 

Forms  of  orders  and  decrees. 

Order  appointing  a  receiver 347 

Decree  for  an  account 348 

Final  decree  for  dissolution  and  account 348 

PETITIONS  — 

Setting  aside  decree  when  defendant  is  not  personally  notified.   91-93 

Form  of,  for  leave  to  amend  hill  after  replication 167 

Form  of  for  production  and  insjjection  of  papers,  etc 175 

For  leave  to  file  supplemental  bill 210 

Form  of 210 

For  leave  to  file  bill  of  review 256-257 

Form,  of,  for  errors  of  law 257 

Form  of,  upon  discovery  of  new  matter 258 

To  perpetuate  testimony 300-304 

Form  of 301 

Form  of,  for  partition 435 

For  dower 466  et  seq. 

Form  of,  hy  widow 468 

By  husband 469 

By  lieirs 470 

Form  of,  for  alimony,  pendente  lite 518 

For  mechanic's  lien  —  {see  Mechanic's  Lien.) 

Form  of,  on  verbal  contract 594 

On  implied  contract 596 

PLEADING  IN  EQUITY- 

General  principles  of 32-34 

PLEAS  —  {see  Pleas  to  a  Bell.) 

To  a  supplemental  bill 212 

To  a  bill  of  revivor 233 

To  a  bill  of  review 262 

To  bills  of  discovery 274 

To  a  cross-bill 315 

Forms  of. 

Commencement  and  conclusion  of 119 

To  part  of  bill 119 

In  abatement  to  jurisdiction  of  court 120 

Of  coverture  of  complainant 120 

Of  infancy  without  a  prochein  ami 120 

That  defendant  never  was  administrator 121 

Alien  enemy 121 

Want  of  proper  parties .  123 

Former  suit  pending 123 


790  INDEX. 

Pleas  to  a  Bill  —  Premises,  or  Stating  Part  of  a  Bill. 

PLEAS  —  Forms  of—  Continued. 

Statute  of  linaitations 123 

Release,  supported  by  answer 123 

Stated  account 124 

To  a  part,  with  answer  to  res-'ulue 125 

To  a  supplemental  bill 213 

To  a  bill  of  review 265 

To  a  bill  of  discovery,  action  pending,  etc 275 

To  a  bill  of  discovery,  would  betray  professional  confidence.  .  .   276 

Rules  of  Supreme  Court  of  U.  S.  relating  to 716-717 

PLEAS  TO  A  BILL  — 

Nature  of 113-114 

When  proper 114 

To  the  j  urisdiction 115 

To  the  person 115-116 

To  the  bill 116 

In  bar 116 

Frame  of 116-119 

Forms  of 119 

Commencement  and  conclusion  of 119 

To  a  part  of  a  bill 119 

In  abatement  to  jurisdiction  of  the  court 120 

Coverture  of  comj)lainarit 120 

Infancy,  without  prochein  ami 121 

That  defendant  never  was  administrator 121 

That  defendant  is  an  alien  enemy 121 

Want  of  proper  parties 122 

Former  suit  pending 122 

Statute  of  limitations 123 

Of  release,  with  answer  in  support  of 123 

Of  stated  account 124 

Plea  to  part  and  answer  to  residue 125 

Signing  of 126 

W  hen  to  be  sworn  to 126 

When  to  be  filed 126 

Demurrer  to,  not  allowed 107-127 

Replication  to 127 

Amendment  of  bill  after 127 

Demurrer  to,  not  proper 127 

Argument  of 137 

Effect  of  allowing 128-129 

Saving  benefits  of,  to  the  hearing 129 

Allowing  to  stand  for  an  answer 130 

Overruling  of 130 

When  to  be  supported  by  answer 130-132 

PORTSMOUTH  OR  NORTHAMPTON  TABLES  — 

For  determining  value  of  annuity,  etc 480 

PRACTICE  IN  SUPREME  AND  APPELLATE  COURTS  — 

Jurisdiction  of  supreme  court 633-637 

Original  jurisdiction 634 

In  revenue  cases 634 

In  nuiridamus 636 

In  habeas  corpus 637 

Appellate  jurisdiction » 637-641 

From  appellate  court 639 

From  circuit  courts,  etc 641 

Jurisdiction  of  appellate  courts  — 

Constitutional  provision 641 

Appellate  only 643 

Power  of  court 642 


INDEX.  791 

Practice  in  Supreme  and  Appellate  Courts. 

PRACTICE  IN  SUPREME  AND  APPELLATE  COURTS  — Continued. 

Practice  and  pleading 642 

Enter  judgment  in  vacation ...  643 

Opinions 643 

Appeals  to 643 

Agreed  cases  — 

On  questions  of  fact 645 

On  questions  of  law 646 

Writ  of  error — supersedeas  — 

Writ  of  error 647 

Limitation  of 647 

To  whom  directed 648 

Process  on , 648 

Prcecipe  for 649 

Pnecipe  for  scire-facias,  etc 650 

Return  day 650 

Notice  to  non-residents,  etc 651 

To  purchasers  — terre-tenants 652 

Supersedeas  652 

When  granted 653 

Application  for 653 

Effect  of 655 

Security  for  costs 655 

Appeals — 

When  record  to  be  filed 656 

Dismissal  of 057 

Damages  on 657 

Not  for  want  of  sufficient  bond 658 

Effect  of 658 

Records  of  inferior  courts  — 

How  prepared 659 

Placita  of,  or  convening  order 660 

What  is  not  a  part  of 660 

Prcwijie  for 661 

Forms  of 663 

Amending  transcript 663 

Additional 663 

Amendment  of 664 

Removing  from  office  of  clerk 664 

Docket — 

Docketing  and  hearing 665 

Advancing  causes 665 

Redocketing  causes  not  decided 666 

Call  of 666 

Time  for  filing  abstracts  and  briefs 666 

Effect  of  failure 669 

Rehearing  docket 670 

Assignment  of  errors  and  proceedings  thereon  — 

When  errors  must  be  assigned 670 

Additional  errors 672 

Form  of  assignment  of  errors 672 

Cross-errors 673 

Joinder  in  error 673 

Form  of 674 

Special  pleas 674 

Release  of  errors 674 

Time  of  filing 676 

Form  of  plea  of  release  of  errors    676 

Trial  of  issues 677 


792  INDEX. 

Practice  in  Supreme  and  Appellate  Courts  —  Praecipe. 

PRACTICE  IN  SUPREME  AND  APPELLATE  COURTS  — Continued. 

Motions  — 

When  to  be  made 677 

In  what  order 678 

Special 678 

Aflfidavits  in  support  of 678 

To  vacate  orders 679 

Suggestion  of  diminution  op  record  — 

When  to  be  suggested 679 

Form  of CBO 

costs  on 680 

Original  papers  — 

When  to  be  produced 681 

Abstracts  op  the  record  — 

To  be  furnished 681 

Time  of  filing 684 

Costs  of 684 

Brief  and  argument  — 

'Briefs 684 

Number  of  copies 685 

Oral  arguments 686 

Time  allowed  for 688 

Advance  pees  of  clerk  — 

How  much  required 689 

Cases  taken  from  appellate  to  supreme  court  — 

Manner  of  taking 690 

Making  up  record  for ...  691 

Application  for  appeal  in  vacation 694 

Judgments  — 

May  be  final 694 

Eemittitur 695 

Reversal 696 

Effectof 696 

Remanding 696 

Special  directions 696 

Executions — 

May  be  had  from  appellate  court 696 

Rehearing  — 

A  pplication  for 697 

When  and  how  made 697 

Answer  to 701 

Stay  of  proceedings 699 

Licensing  attorneys  —  striking  names  from  roll — 

Examination  in  supreme  court 701 

In  appellate  court 702 

From  other  states 703 

By  whom  issued 704 

Oath  of  attorney 704 

Roll  of  attorneys 704 

Striking  names  from  roll 704 

Cause  of 705 

Notice  of  complaint 706 

Information 706 

Library — 

Duties  of  librarian 707 

PRECIPE  — 

For  writ  of  error 649 

Form  of 649 


INDEX.  793 

Praecipe  —  Receiver. 


PRAECIPE  —  Continued. 

For  scire-facias 650 

Form  of 650 

PRAYER  — 

For  relief  in  a  bill 56-58 

Form  of 73 

For  process  in  a  bill  .....' 58-59 

Forms  of 73 

For  summons 73 

For  suhpwna 73 

For  injunction 73 

Of  a  supplemental  bill 207 

PREMISES,  OR  STATING  PART  OF  A  BILL— 

Requirements  of,  generally  42-52 

Form  of 70 

PRIVITY— 

Form  of  demurrer  for  want  of Ill 

PROCESS  FOR  APPEARANCE  — 

Summons 74 

Service  and  return  of  . . .   75-77 

How  served 75 

The  return 75-77 

Notice  by  publication 77 

Time  of 77 

Form  of  affidaritfor , 78-79 

Non-residence  of  defendant — residence  not  known 78 

Defendant  cannot  be  found 78 

Defendant  is  concealed 79 

Service  by  copy  of  bill 79-80,  436 

Form  of  notice  to  he  served  with 80 

Form  of  affidavit  of  service 80 

Unknown  persons  as  defendants 81 

Attachment  to  compel  answer 81 

How  obtained 83 

Form  of  affidavit  to  obtain 84 

Form  of  order  for 84 

Attachment  with  proclamation 84 

Commission  of  rebellion ...     85 

Sergeant- at- arms 85 

Sequestration 86 

In  partition  suits 436 

In  mechanic's  lien  suits 598 

To  a  supplemental  bill 211 

Upon  cross-bill 313 

In  the  U.  S.  courts  of  equity 712 

Service  of 711-712 

PROCHEIN  AMI  — 

Rule  of  Supreme  Court  of  U.  S.  relating  to 731 

Required  to  give  bond  for  costs 38 

PUIS  DARREIN  CONTINUANCE  — 

Form  of  cross-bill  in  nature  of  plea  op.  . .   310 

RECEIVER  — 

Appointment  of,  in  suits  between  partners 341-342 

When  appointed 342 

Form  of  order  appointing 347 

Form  of  order  appointing  in  creditor  s  suit 419 


794  INDEX. 

Records  of  Inferior  Courts  —  Revivor,  Bill  of. 

RECORDS  OF  INFERIOR  COURTS  — (See  Pkactice  in  Supreme  and 
Appellate  Courts.) 

RECRIMINATION— 

In  divorce  suits 510 

REDEMPTION— (fe^e  Bills  to  Redeem.) 

RELEASE  — 

Form  of  plea  of,  supported  hy  answer 123 

RELIEF— 

Prayer  for  in  a  bill 56-58 

Form  of 73 

REPLICATION— 

Nature  of 170 

Within  what  time  to  be  filed 170-171 

Issue  made  by 171 

Effect  of  filing 172 

Withdrawing 172 

Form  of 172 

To  answer  to  bill  of  revivor 235 

Toaplea 127 

Rules  of  Supreme  Court  of  U.  S.  relating  to 724 

REPORT— 

Of  commissioners  to  make  partition 445 

Form  of,  where  partition  was  made 445 

Form  of,  where  premises  not  susceptible  of  division 446 

Form  of,  of  master  in  chancery,  of  evidence 184 

Form  of,  of  master  as  to  alimony,  etc 520 

Form  of,  of  master  as  to  separate  maintenance 530 

Form  of,  of  master  as  to  exceptions  to  answer 628 

Form  of,  of  master  as  to  sufficiency  of  defendant' s  examination  . .  629 
REVIEW,  BILLS  OF— 

Nature  of,  and  when  proper 249-254 

Where  they  lie 249 

For  error  of  law 251-253 

For  newly  discovered  evidence 253-254 

Parties  to 254-255 

Leave  to  file 255-258 

Performance  of  decree 256 

Petition  for 256-257 

Form  of,  for  errors  of  law 257 

Form  of,  for  newly  discovered  evidence 258 

Within  what  time  to  be  brought 358-259 

Form  of  order  of  leave  to  file 259 

Form  of  bill 259-260 

Form  of,  i(pon  errors  of  law 260 

Form  of,  on  discovery  of  new  matter 261 

Form  of  affidavit  to 262 

Defenses  to 262-266 

Demurrer 264-265 

Form  of 266 

Answer 265 

Form  of  plea  to 265 

REVIVOR,  BILL  OF- 

Nature  of 225 

When  proper 226-228 

Before  decree 226-227 

After  decree 227-228 


INDEX.  795 

Revivor,  Bill  of — Specific  Performance,  Bills  for. 

REVIVOR,  BILL  OF  — Continued. 

Against  whom  to  be  filed 228 

Before  decree 228-229 

After  decree 229 

Frame  of  bill 230 

Must  pursue  the  original  bill 230 

Form  of,  before  decree 230 

Form  of,  after  decree 231 

Defenses  to 233 

Demurrer 233 

Plea 233-234 

Answer 234-235 

Replication 235 

Order  to  revive 236 

Form  of 236 

Hearing 237 

Effect  of 238-239 

Bills  in  the  nature  of. 

Nature  and  uses 240-242 

Parties  to 242 

Frame  of 242 

Form  of 243 

Defenses  to  and  proceedings  upon 245 

Revivor  and  supplement. 

Nature  of,  and  when  proper 246 

Practice  upon 247 

Form  of 247 

Rules  of  Supreme  Court  of  U.  S.  relating  to 721-722 

SCANDAL  AND  IMPERTINENCE— 

Of  what  it  consists,  in  a  bill 51-52 

Exceptions  to  a  bill  for 95 

Form  of 95 

Exceptions  to  an  answer  for 160-162 

Form  of 162 

Form  of, order  expunging 163 

Rules  of  Supreme  Court  of  U.  S.  relating  to 714-715 

SEPARATE  MAINTENANCE  — (See  Maintenancf    etc.) 

SEQUESTRATION— 

When  directed,  etc 86 

SERGEANT-AT- ARMS — 

When  appointed,  etc 85 

SPEAKING  DEMURRERS  — 

What  are,  and  nature  of 105 

SUMMONS  —  (See  Process  op  Appearance.) 
SWEARING  TO  A  BILL— 

When  required 61-62 

To  a  bill  of  review — newly  discovered  matter 262 

To  a  bill  of  interpleader 285 

SPECIFIC  PERFORMANCE,  BILLS  FOR  — 

Nature  of,  and  when  proper 317-323 

Of  a  lost  instrument 323 

Parol  contracts 324 

Parties  to 325-326 

Frame  of  bill 326 

Tender 327 


796  INDEX. 

Specific  Performance,  Bills  for  —  Supplemental  Bills. 

SPECIFIC  PERFORMANCE,  BILLS  FOR  —  Continued. 
Forms  of. 

Of  a  tvi-itten  agreement,  vendee  vs.  vendor 327 

Of  a  written  agreement,  vendor  vs.  vendee 328 

Of  a  bond  for  a  deed 330 

Of  an  agreement  for  a  lease 331 

Decree 333-335 

Declaration  of  right  to 333 

Reference  of  title 334 

Payment  of  purchase  money,  etc 335 

Delivery  of  deeds,  etc 335 

Forms  of  orders  and  decrees. 

Order  of  reference  as  to  title,  etc 335 

Interlocutory,  for  an  account 336 

Final  decree  for 337 

Form  of  supplemental  hill  for. .  • 208 

STATUTE  OF  FRAUDS— 

Form  of  miswer,  setting  it  up 150 

STRICT  FORECLOSURE  — (See  Foreclosure  of  Mortgages.) 
SUB-CONTRACTOR— (See  Mechanic's  Lien.) 
SUBPOENA— 

Form  of  prayer  for,  in  a  bill 73 

SUPPLEMENTAL  BILLS  — 

Nature  of,  and  when  proper 203-305 

When  to  be  filed    205 

Parties  to 205-206 

Form  of 207 

Prayer  of 207 

Form  of,  for  specific  performance,  etc 208 

Form  of,  against  assignee  of  bankrupt,  etc 209 

Petition  for  leave  to  file 210 

Form  of 210 

Process,  etc    211 

Defenses  to 211 

Demurrer 211 

Form  of 212 

Plea 212 

Form  of 213 

Practice  as  to  demurrers  and  pleas 213 

Answer 213 

Replication  and  evidence 214 

Replication 214 

Evidence 214r-215 

Hearing  of 215 

Entitling  orders  in 215 

Dismissing 216 

Bills  in  the  nature  of  — 

When  proper 217-219 

Form  of 219 

Form  of  bill  in  nature  of 219 

Bills  to  carry  decrees  into  execution  — 

Nature  of 223 

Form  of 228 

Bills  op  revivor  and  supplement  — 

Nature  of,  and  when  proper 246 

Practice  upon 247 

Form  of 247 


INDEX.  797 

Supreme  Court — Waste,  Bills  to  Restrain. 

SUPREME    COURT  — (5ee   Practice   in   Supreme   and   Appellate 

Courts.) 
TAKING  BILLS  AS  CONFESSED  — 

Default 87 

When  it  may  be»taken 87 

Effect  of 88-8» 

Rights  of  defendant  after 90 

Setting  aside 90-91 

Form  of  affidavit  in  support  of  motion  to. 91 

Setting  aside  decree  when  defendant  is  not  personally  notified .  91-93 

Form  of  petition  to  set  aside  decree,  etc 93 

To  accept,  what  the  term  means 87 

Rule  to  answer 87-88 

In  case  of  bills  of  interpleader 289 

TAX  DEED  — 

Form  of  bill  to  set  aside,  etc 541 

TESTIMONY  — 

Production  of  books  and  writings 174 

When  in  the  hands  of  third  persons 175 

Forms  of  petition  for  production  of ,  etc 175 

Form  of  order  for 176 

Depositions 176 

Of  resident  witnesses 176-177 

Of  non-resident  witnesses,  etc 177-178 

Notice  of  taking,  when  opposite  party  is  a  non-resident,  etc. . .  178 

Of  non-resident  witnesses,  upon  oral  interrogatories 179 

Manner  of  taking,  etc  180-181 

Instructions  for  taking 182 

Interpreters  in  taking 182 

Evidence  taken  by  master  in  chancery 183 

Foryn  of  order  of  referen  ce 183 

Form  of  Piaster's  report  of 184 

Form  of  objections  to 185 

Form  of  exceptions  to 185 

Oral  testimony  at  the  hearmg 186-187 

TRUST  DEED  — 

Form  of  hill  to  foreclose,  etc 383 

TRUSTEES  — 

Form  of  hill  to  remove 571 

Form  of  hill  for  appointment  of ,  etc 573 

TRUSTS,  BILLS  RELATING  TO  — 

Nature  of 569-570 

Forms  of  hills 571-574 

To  remove  trustee,  for  injunction,  and  receiver 771 

For  appointment  of  neiv  trustee,  etc 573 

UNKNOWN  OWNERS  — 

In  partition  suits 428 

Process  against,  in 436 

Interest  of,  in  partition  sales 449-450 

In  dower  suits 471 

UNKNOWN  PARTIES  — (See  Parties.) 
WASTE  — 

By  persons  to  whom  dower  is  assigned 482 

WASTE,  BILLS  TO  RESTRAIN  — 

Nature  of,  and  when  proper 563-566 

Form  of  bill,  landlord  against  tenant 56& 


798  INDEX. 

Wigglesworth's  Table  —  Writ  of  Error. 

WIGGLESWORTH'S  TABLE  — 

For  ascertaining  present  value  of  annuity,  dower,  etc 479 

WILLS,  BILLS  TO  SET  ASIDE  — 

Nature  of,  and  when  proper 547-548 

What  necessary  to  constitute  a  vaUd  will    548 

Fraud  in  procuring  execution  of 549-550 

Want  of  capacity  to  make 550 

Form  of  hill 551 

Issue  of  fact  to  be  tried  by  a  jury 553 

Form  of  order  directing - 553 

Form  of  decree  setting  aside,  etc 553 

WITNESSES  — 

Compulsory  attendance  of  in  U.  S.  court 726 

WRIT  OF  ERROR— (See  Practice  in  Supbeme  and  Appellate  Courts.) 


^ 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  834  196    8 


(  ':Ja. 


^  /,%  ■ 


